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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Wrightbus Ltd [2009] NIIT 1668_07 (26 May 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1668_07.html
Cite as: [2009] NIIT 1668_07, [2009] NIIT 1668_7
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THE INDUSTRIAL TRIBUNALS


CASE REFS: 1668/07

1812/07

21/08



CLAIMANT: Gavin Smith



RESPONDENT: Wrightbus Limited



DECISION ON REVIEW

The unanimous decision of the tribunal is that the respondent’s application for a review of the decision issued on 17 February 2009 is allowed to the limited extent set out herein but that the decision in respect of liability and compensation is confirmed.



Constitution of Tribunal:

Chairman: Mr Kelly

Members: Mr Killen

Ms Gregg



Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Dunlop, Barrister-at-Law, instructed by Carson McDowell, Solicitors.



  1. The tribunal sat on 1 – 2 December and 12 December 2008 and a decision issued on 17 February 2009. In that decision, the tribunal determined that the respondent had failed to comply with Section 4A of the Disability Discrimination Act 1995 in that it had failed to make a reasonable adjustment. The tribunal also determined that the claimant had been unfairly dismissed. Compensation totalling £23,333.31 was awarded in respect of unfair dismissal. In respect of the failure to make a reasonable adjustment, the tribunal fixed compensation at £12,500.00 for injury to feelings plus £2,000.00 interest.


  1. In a letter dated 24 March 2009, the respondent sought a review under Rule 34(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the basis that the tribunal had:


“(1) In relation to the finding that the respondent failed to make reasonable adjustments for the claimant, acted beyond its jurisdiction in making such a finding.


(2) In relation to the finding that the Respondent unfairly dismissed the claimant, substituted its own view for that of the Respondent and failed to give full consideration to the claimant’s actions.


  1. If the tribunal did err in law in relation to the issues above, did the tribunal thereby err in law in relation to the compensation it had awarded to the claimant?”


  1. At the hearing of the review application on 28 April 2009, Mr Dunlop BL, instructed by Carson McDowell, Solicitors, argued that a review was merited on the following grounds:-


“(i) The finding of the tribunal in relation to unfair dismissal was erroneous in law in that the tribunal had substituted its own view on the outcome of the disciplinary process for the view of the employer. The proper test was whether the decision to dismiss had been within the band of reasonable responses and the appropriate question was ‘could a reasonable employer have dismissed the claimant?’.


The employer in this case has listened to the claimant during the disciplinary and appeal process but had decided not to believe the claimant and it was reasonable for the employer not to have done so. The claimant had previously used another person’s insulin with no apparent ill-effects and on the day in question had cycled home from the factory without speaking to anyone in authority.


The investigation had been reasonably conducted when judged on an objective standard. The tribunal had erred in assessing the standard of evidence before it rather than the evidence before the employer when the employer made the decision to dismiss.


(ii) A decision that the respondent had failed to comply with its Section 4A duty was wrong. The respondent had offered the use of a cupboard underneath the claimant’s workbench. Mr Ian Finch, the claimant’s line manager, had taken steps to stop practical jokes. The duty under Section 4A was to do what was reasonable; it was not a limitless duty. The suggestion that the external hinges on the cupboard could have been removed was unrealistic. The claimant’s disability did not put him in a different position from anyone else in relation to the need for a locker.


  1. The award of £12,500.00 in respect of injury to feelings was excessive. The middle band of Vento was not appropriate.”


  1. The claimant, in response, confirmed his earlier evidence that:-


“(i) He had been told by his diabetic nurse not to use another person’s insulin.


(ii) The cupboard offered was unhygienic and the external hinges easily removable with power tools available in the work area.


  1. Lockers were available for other areas of the factory.”


  1. The tribunal has considered the arguments advanced on behalf of the respondent. It has also considered carefully the recent decision of the Court of Appeal in London in the case of London Ambulance Service NHS Trust v Simon Small [2009] EWCA Civ 220 which was issued on 17 March 2009. In that case the Court, at Paragraph 43, stated that the real question which a tribunal has to be bear in mind in these circumstances, is whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.


  1. At Paragraphs 44 – 46 of the decision the Court stated:-


“(44) I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purpose of deciding the extent to which Mr Small’s conduct contributed to his dismissal. That was a different issue from whether the Trust unfairly dismissed Mr Small for misconduct. Contributory fault only arose for decision, if it was established that the dismissal was unfair. The contributory fault decision was for the ET to make on the evidence that it had heard. It was never a decision for the Trust to make. That makes it different from the decision to dismiss, which was for the Trust to make. It was not the role of the ET to conduct a re-hearing of the facts which formed the basis of the Trust’s decision to dismiss. The ET’s proper role was objectively to review the fairness of Mr Small’s dismissal by the Trust.


(45) I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal. Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the reasons is that its findings of fact about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal.


(46) Mr Marsh spoke of his experience that ET’s often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal for ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and, increasingly discrimination and victimisation claims. Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if may lead to some duplication.”


  1. The tribunal after considering the decision in Small and after considering the arguments put forward by Mr Dunlop, has concluded that, in recording its decision, at Paragraph 52, it had referred to findings of fact in relation to two separate and distinct issues, ie that it had conflated its findings in relation to unfair dismissal together with its findings in relation to contributory misconduct. While the tribunal had been conscious, at all times, of the proper basis on which to approach these separate issues, the tribunal accepts that the manner in which Paragraph 52 was recorded is unhelpful. The tribunal therefore amends Paragraph 52 to read as follows:-


“52 Unfair Dismissal//Breach of Contract


The tribunal has taken into account the guidance in TAYLOR (paragraph 21) and is approaching the question of unfair dismissal broadly as an industrial jury considering the procedural issues together with the reasons for the dismissal. The tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.


The sole reason for dismissal was, on the evidence of the respondent, the claimant’s actions in leaving the premises on 23 May 2007 without permission.


The tribunal concludes that the respondent failed to adequately investigate the circumstances in which the claimant left the premises on that date. Firstly, Mr Larmour, in paragraph 1 of statement, said an investigation had been carried out, and Mr Cromie, in paragraph 4 of his statement, referred to a formal investigation being carried out by Joe Martin and Julie Brown. Neither Mr Martin or Mr Brown gave evidence and no documentation relating to such an investigation was opened to the tribunal. Secondly, while the sole disciplinary charge was one of leaving the premises without permission, the formal disciplinary meetings focused to a significant extent on whether or not the claimant had complied with sick certification procedures. Thirdly, the respondent appears to have approached the matter with a closed mind about the claimant’s credibility and a preconceived outcome. Mr French in an investigation meeting on 12 June 2007 (paragraph 31), which was part of the disciplinary process, stated in relation to the claimant – “he is paranoid and tells lies”. No examples or evidence was recorded for this remark and there appears to have been no further investigation into the claimant’s credibility. The same statement was repeated at a further meeting on 18 June 2007 (paragraph 33). The respondent believed the claimant was not telling the truth when he said that his syringe had been broken and that he had left the premises because he was ill. The question for the tribunal is whether the respondent had reasonable grounds for that belief and whether the employer had carried out as much investigation as was reasonable in all the circumstances of the case (BURCHELL – paragraph 18). Of particular concern to the tribunal is the respondent’s failure to investigate the claimant’s repeated comments about the inadvisability of using another person’s insulin. The claimant had made it plain on three occasions during the disciplinary hearing on 21 June 2007 that the insulin belonging to the other person was different (paragraph 36). He also specifically stated that “it’s not good to borrow someone else’s insulin”. In the appeal hearing the claimant further stated that he had been told by his Diabetic Nurse not to use another person’s insulin. Despite these comments, the respondent failed to check whether this was the case even though an occupational health specialist and a factory nurse were available to assist. It assumed, without checking, that the claimant was not telling the truth. The claimant’s failure to use another employee’s insulin was a significant factor in the decision to dismiss. Fourthly, the claimant had no formal disciplinary record. Fifthly, the claimant’s request for a secure and hygiene locker to store his insulin and syringe had not been granted. Mr Megarry, who conducted the appeal hearing, acknowledged in evidence that he had been aware of a level of “horseplay” in the factory and further acknowledged that he had believed that the claimant’s bag had been removed. Mr Megarry stated that he had taken those factors into account when confirming the dismissal.


The tribunal concludes that, in all the circumstances of the case, the decision to dismiss the claimant, with or without notice, was not within the band of reasonable responses open to the respondent.


In relation to the issue of contributory conduct, the tribunal concludes that the claimant had been unable to contact his line manager before leaving the premises.


It was not in dispute that a management meeting of some sort was going on at the appropriate time and that Mr French was the only manager who was familiar with the claimant’s condition. The tribunal, after carefully observing the claimant giving evidence, concludes that his blood sugar had been elevated when he realised that his bag had been moved on 23 May 2007 and that he needed an injection of insulin. The tribunal also concluded that the syringe had been broken. An injection was available at the claimant’s house, a relatively short distance away. The tribunal therefore concludes that his actions in leaving the premises, having attempted, without success, to speak to his line manager, could not reasonably be described as culpable in all the circumstances of the case. “


  1. In relation to Mr Dunlop’s second point, the tribunal confirms its decision in relation to Section 4A as set out in Paragraph 53 and 56 of the decision.


  1. In relation to Mr Dunlop’s third point about the level of compensation for injury to feelings, the tribunal confirms its decision. The claimant had first asked his line manager for a secure hygienic locker in December 2006. There had been no effort by the respondent to provide such a locker even though there had been an acknowledged culture of practical jokes and a dusty working environment. The tribunal concluded having carefully observed the claimant giving evidence, that it was satisfied that the respondent’s failure to respond to the claimant’s request for a locker over the five months leading up to his dismissal had caused significant injury to feelings and that an award in the middle Vento band was appropriate.

  2. A copy of the decision, as varied, is attached.








Chairman:



Date and place of hearing: 28 April 2009, Belfast.



Date decision recorded in register and issued to parties:



6.

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