Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REFS: 263/07

364/07

CLAIMANT: Joyce Townsley

RESPONDENTS: 1. Queen's University

2. Denise Scullion

3. Mary Patton

4. Carol Clarke

5. Morris Bailiy

6. D Maguire

DECISION

The unanimous decision of the tribunal is as follows:-

(A) The complaint of unfair dismissal against the first-named respondent, Queen's University Belfast ('Queens'), is well-founded.

(B) The complaint of unfair dismissal against all of the other respondents has to be dismissed (because none of the other respondents employed the claimant).

(C) The tribunal has decided not to make an order for the reinstatement or re-engagement of the claimant.

(D) The claimant is entitled to the sum of £620 by way of compensation for unfair dismissal and Queens is ordered to pay that sum to the claimant.

Constitution of Tribunal:

Chairman: Mr Buggy

Members: Mr Henry

Mrs Foster

Appearances:

The claimant appeared in person.

The respondents were represented by Mr C Hamill, Barrister-at-Law, instructed by L'Estrange & Brett, Solicitors.

REASONS

1. The claimant was employed as a cleaner by Queens from 29 July 2002 until 14 December 2006. Queens dismissed the claimant with effect from the latter date. According to Queens, she was dismissed because of two alleged incidents of misconduct.

The allegations

2. The alleged misconduct can be summarised as follows:-

(1) Mrs Carol Clarke (a team leader in Cleaning Services at Queens) alleged that she had been verbally abused by the claimant at Queen's Film Theatre ('QFT') on 24 August 2006.

(2) Mrs Mary Patton (a team leader in Cleaning Services at Queens) alleged that the claimant had assaulted and verbally abused her at QFT on 13 September 2006.

The internal disciplinary process and its outcome

3. An internal disciplinary hearing was held on 10 November 2006. The disciplinary panel accepted the truth of the allegations and decided that the appropriate sanction was dismissal. The dismissal took effect on 14 December 2006.
4. Queens notified the claimant of her dismissal in a letter dated 14 December 2006. The claimant returned that letter to Queens. The returned letter contained a variety of handwritten endorsements. One of those endorsements included the words "I do wish to appeal". The quoted endorsement was enough to constitute due notification of the fact that the claimant wished to appeal, under the disciplinary procedure at Queens, against her dismissal.
5. However, Queens never made any arrangements for the claimant's right of internal appeal to be implemented.

Why the dismissal is unfair

6. The Employment (Northern Ireland) Order 2003 ('the 2003 Order') provides for statutory 'Dismissal and Disciplinary Procedures' ('DDP'). According to the DDP, if an internal disciplinary authority decides that a particular employee is to be dismissed, that employee has a right of internal appeal against that dismissal. Specifically, paragraph 3 of Schedule 1 of the 2003 Order makes provision as follows:-

"(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

…"

7. Article 130A of the Employment Rights (Northern Ireland) Order 1996 (as inserted by provisions in the 2003 Order) provides that an employee is to be treated as automatically unfairly dismissed if all of three circumstances exist in relation to the dismissal:-

(1) the DDP applies in relation to the dismissal,

(2) the procedure has not been completed, and

(3) non-completion of the procedure is wholly, or mainly, attributable to failure by the employer to comply with the requirements of the DDP.

8. Mr Hamill, on behalf of Queens, properly and appropriately accepts that this is an unfair dismissal, because of the failure on the part of Queens to organise an appeal. (Because of that failure, the DDP has not been completed and the non-completion of that procedure is wholly or mainly attributable to failure by Queens to comply with the requirements of the DDP.)

The remedies issues at this stage of the case

9. It was agreed between the parties that it would be unnecessary for the tribunal to attempt to calculate, at this stage of the case, the extent of any financial loss sustained by the claimant by reason of her dismissal. Instead, it was agreed that it would be appropriate for the tribunal, at this stage of the case, to focus upon the following issues:-

(1) Should the tribunal make an order for reinstatement or re-engagement?

(2) What was the percentage chance that the claimant would have been fairly dismissed if her internal appeal had been properly and fairly and speedily dealt with?

(3) Should there be any 'conduct' deduction from any compensatory award and, if so, how much?

(4) If, in the circumstances of this case, the claimant would not be entitled to a basic award of at least four weeks' pay, would it be unjust to allow the claimant a basic award of at least four weeks' pay?

(5) Should there be any 'conduct' deduction from any basic award and, if so, how much?

10. As explained below, we have decided not to make an order for reinstatement or re-engagement. Accordingly, it is necessary to consider the remainder of the issues which have been identified in the last paragraph above.
11. In view of the conclusions which we have arrived at in respect of issue (2), it has been unnecessary for us to resolve issue (3).
12. In order to resolve issues (1) and (5) it has been necessary for us to arrive at conclusions on the question of whether or not the claimant was in fact guilty of the alleged misconduct.
13. The claimant says that the allegations are lies. The respondent says that the versions of events put forward by Ms Clarke and Ms Patton are truthful versions.
14. The claimant accepts that it would have been reasonable for Queens to have dismissed her in the circumstances of this case if (after following a fair process) Queens had had credible evidence that she (the claimant) was guilty of the alleged misconduct. So this is not a case in which we have to consider whether the choice of the sanction of dismissal was, or was not, within the range of reasonable responses.
15. It was accepted on both sides of the case that it would not be appropriate for the tribunal to make an order for reinstatement or for re-engagement if the tribunal was satisfied that the alleged misconduct had in fact occurred.
16. The claimant has named a variety of individuals as respondents to these proceedings. However, as the claimant accepts, Queens was her only employer. Unfair dismissal claims can only be brought against an employer. For that reason, the claims against all of those individuals have to be dismissed.

The facts

17. In the following paragraphs, we have set out findings of fact which are relevant to the issues which we have determined.
18. We are satisfied that the versions of events put forward by Mrs Clarke and Mrs Patton are truthful versions of events and that the versions put forward by the claimant (in relation to the incidents which occurred on 24 August and 13 September 2006) are not accurate versions of events.
19. In deciding that we prefer the Clarke and Patton versions of events, we have taken account of the following matters:-

(1) The demeanour and manner of giving evidence of Mrs Clarke, Mrs Patton and the claimant respectively.

(2) We found the evidence of Mrs Clarke and Mrs Patton to be internally consistent and to be consistent with the known facts.

(3) We found the claimant's evidence to be vague and evasive in some important respects.

(4) The claimant inaccurately told us that she was not present on 24 August 2006 when the misconduct against Mrs Clarke was alleged to have occurred. We are satisfied that the claimant's evidence in that respect is inaccurate because there is important documentary evidence (in the form of 'signing-in and signing-out' sheets) which supports Mrs Clarke's contention that the claimant was present at the time of the Clarke incident. Contrary to the view put forward by the claimant, we are entirely satisfied that the relevant sheets were not forged.

20. Accordingly, with regret, we have found that the claimant did carry out the relevant acts of misconduct.
21. She has never acknowledged that she did carry out those acts. Against that background, we accept that Queens would encounter significant management difficulties if the claimant were to be reinstated or re-engaged.
22. We accept that the failure on the part of Queens to arrange an internal appeal for the claimant was inadvertent rather than deliberate. Nevertheless, on the basis of the evidence available to us, we consider that there was no good reason for that failure.

The reinstatement/re-engagement issue (The law and our conclusions)

23. Article 146(3) of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order) provides that, if a claimant expresses a wish to be reinstated, the tribunal may make an order under Article 147 of the 1996 Order.
24. Article 147 provides that an order under that Article may be an order for reinstatement (in accordance with Article 148 of the 1996 Order) or an order for re-engagement (in accordance with Article 149) " … as the tribunal may decide".
25. Article 150 of the 1996 Order makes provision as follows:-

(1) In exercising its discretion under Article 147, the tribunal must first decide whether to make an order for reinstatement. In so doing, the tribunal must take account of three factors. The first factor is whether the claimant wishes to be reinstated. The second of those factors is whether it is practicable for the employer to comply with an order for reinstatement. The third of those factors is set out at Article 150(1)(c) in the following terms:-

"(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."

(2) If the tribunal decides not to make an order for reinstatement, it must then consider whether to make an order for re-engagement.

(3) In deciding whether to make an order for reinstatement, the tribunal is obliged to take into account three factors. The first factor relates to any wish expressed by the claimant as to the nature of the order to be made. The second factor is whether it is practicable for the employer to comply with an order for re-engagement. The third factor is set out at Article 150(2)(c), in the following terms:-

"(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms."

26. We have found that the dismissal was caused by the claimant's misconduct. That misconduct was serious and blameworthy. Those are important matters to be taken into account in deciding whether to make an order for reinstatement or re-engagement in this case.
27. In deciding whether or not to make such an order, we also have to have regard to considerations of practicability. In our view, there would be considerable practical difficulties if the claimant were to be reinstated or re-engaged, particularly in circumstances in which she has consistently not acknowledged the fact of her misconduct.
28. Against that background, and in light of those factors, we have decided not to make an order for reinstatement or re-engagement.

The chances of the claimant being fairly dismissed (The law and our conclusions)

29. Article 152 of the 1996 Order provides that, where a tribunal makes an award of compensation for unfair dismissal, the award is to consist of a basic award and a compensatory award.
30. Article 157(1) of the 1996 Order provides as follows:-

"(1) Subject to [certain other provisions of the 1996 Order], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

31. The House of Lords decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 is authority for the proposition that, in deciding on the amount of compensation which is 'just and equitable' for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would have been dismissed, in any event, even if there had been no procedural shortcomings in connection with the relevant dismissal.
32. In considering the Polkey issue, two questions have to be answered. First, if the dismissal had been free of any procedural defect, would a decision to dismiss have been within the range of reasonable responses? Secondly, would the employer in fact have decided to dismiss in that situation?
33. As Lord Bridge accepted, in the course of his speech in Polkey, there is no need for an 'all or nothing' decision on this issue; if the tribunal thinks that there is a doubt whether or not the relevant employee would (in the absence of any procedural defects) have been fairly dismissed, this element of doubt can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.
34. We can now apply those principles in the circumstances of this case. We are satisfied that, if there had been an internal appeal, as there should have been, the evidence put forward by Management and by the claimant would have been substantially the same as the evidence which we have considered in the course of this tribunal hearing. We are satisfied that any reasonable internal appeal authority, faced with that evidence, would have concluded that the alleged misconduct did in fact occur. We are satisfied that if such an internal appeal body had decided, in those circumstances, to uphold the dismissal, that decision would have been within the range of reasonable responses available to a reasonable employer. We are satisfied that Queens takes a generally serious view of misconduct of the type which is alleged in this particular case. Against that background, we are satisfied that any internal appeal body would in fact have upheld the initial decision to dismiss.
35. We are 100% satisfied on those matters. Therefore, in the circumstances of this case, the claimant is not entitled to any compensatory award.

The effect of Article 154(1A) of the Order (The law and our conclusions)

36. Article 154(1A) of the 1996 Order provides that, where an employee is regarded as automatically dismissed (because of a failure to complete the DDP procedure), and an award of compensation 'falls to be made', and the amount of any such award is less than the amount of four weeks' pay, the industrial tribunal is obliged, subject to paragraph (1B), to increase the award to the amount of four weeks' pay.
37. Article 154(1B) provides as follows:-

"(1B) An industrial tribunal shall not be required … to increase the amount of an award if it considers that the increase would result in an injustice to the employer."

38. As we have already noted above, there was no good reason for the failure on the part of Queens to implement the claimant's entitlement to an internal appeal. In those circumstances, we do not consider that the relevant increase would result in any injustice to Queens.
39. Therefore, the amount of the basic award payable to the claimant must be at least an amount equal to four weeks' pay.

Conduct and the basic award (The law and our conclusions)

40. Article 156(2) provides as follows:-

"(2) Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

41. In the present context, 'conduct' can only be taken into account if it is blameworthy.
42. We have a broad discretion as to the amount of any reduction in respect of conduct.
43. In this case we are dealing with an unfair dismissal which is fundamentally flawed from a procedural point of view (because of the failure to implement the claimant's right of internal appeal), but in circumstances in which the choice of dismissal as a sanction was not, in itself, outside 'the range of reasonable responses'.
44. The relevant allegations against the claimant have been proven to our satisfaction. They are allegations of blameworthy conduct.
45. Against that background, and bearing those matters in mind, we have decided that a 100% 'conduct' deduction from the basic award would be appropriate.

The outcome

46. However, that 100% 'conduct' deduction has to be read within the context of the conclusions which we have arrived at in respect of the Article 154(1A) issue (as set out above, at paragraph 39 above). Accordingly, despite the 100% 'conduct' deduction, the claimant is entitled to a basic award amounting to four week's pay.
47. The parties are agreed that four weeks' pay, in the context of the basic award, amounts to £620 (at the rate of £155 per week). Therefore, the claimant is entitled to an award of £620.

Interest

48. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 15 – 16 November 2007, Belfast

Date decision recorded in register and issued to parties: