Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1738_07IT.html
Cite as: [2009] NIIT 1738_07IT, [2009] NIIT 1738_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1739/07

CLAIMANT: Cara Coleman

RESPONDENT: Norbrook Laboratories

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Vice President: Mrs Smyth

Members: Mr Sidebottom

Mr Gunn

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The respondent was represented by Mr F O’Donohue, Queen’s Counsel, and Mr P Michel, Barrister-at-Law, instructed by Berkeley-White, Solicitors.

Reasons

1. The claim is for unfair dismissal. In the context of this claim, the following issues arise for determination by the tribunal:-

(a) Whether the claimant committed a disciplinary offence by failing to comply with a request made by Lord Ballyedmond on 25 June 2007?

(b) If so, was dismissal for that offence within the range of reasonable responses of an employer?

(c) Whether there was procedural unfairness to the extent that the dismissal was automatically unfair for reasons set out in Article 130A of the Employment Rights (Northern Ireland) Order 1996?

(d) If not, was there nonetheless procedural unfairness? If so, is it likely, or was there a chance, that such unfairness would have made no difference to the outcome?

(e) In the event that the tribunal concludes that the claimant was unfairly dismissed, did the claimant by her conduct contribute to her own dismissal and, if so, to what extent?

2. The tribunal heard evidence from Lord Ballyedmond, Martin Murdock, Emelia Woskowiak, Martin McKavanagh, Louise Kirk, Kenneth Allen, Gareth McConville, Martin Logan, Derek Rodgers, and Bill Toner on behalf of the respondent. The tribunal heard evidence from the claimant on her own behalf.

3. The following facts were found on a balance of probabilities:-

The background to the claim

(3.1) The claimant was employed by the respondent for more than 30 years prior to her dismissal for gross misconduct in July 2007.

(3.2) The claimant was a highly valued and trusted employee. She was initially employed in the Accounts Department and became Credit Controller in January 1994.

(3.3) In addition, she was a director of two associated companies, Ballyedmond Castle Farms Ltd and Corby Investments Ltd, and was a cheque signatory. As a director of Ballyedmond Farms Ltd, the claimant was responsible for the administrative business, taking minutes, looking after invoices, etc. The tribunal accepts that the claimant was highly reliable and competent and at no time was there any criticism about the quality of her work.

(3.4) The respondent company is an international company which employs approximately 1,600 employees worldwide. There are three sites based in Newry at Armagh Road, Station Works, and Carnbane, and the majority of employees are employed in Northern Ireland.

(3.5) There is no doubt that until the events which led to her dismissal, the claimant and the Chairman of the company, Lord Ballyedmond, enjoyed a very good working relationship. At one stage the claimant wished to work part-time and consequently an agreement was reached whereby the claimant was made redundant with a redundancy payment of £25,000 and commenced work on a part-time basis the following working day, without any break to the continuity of service.

(3.6) In March 2007, some three months before her dismissal, Lord Ballyedmond arranged a dinner in her honour to mark 30 years of service. Other employees with long service also attended. The event was reported in the local press, along with photographs and remarks by Lord Ballyedmond that the claimant has ‘a long and secure future’ with the company. The claimant was presented with a gift of jewellery and a substantial amount of money to mark the occasion.

The events leading to the claimant’s dismissal

(3.7) At the relevant time, Lord Ballyedmond’s office was normally staffed by two personal assistants. The tribunal accepts that the Chairman’s office is the hub of the organisation, and that all contact with Lord Ballyedmond, whether internally or externally is made through this office. In particular, the tribunal accepts that Lord Ballyedmond required that his office was manned at all times between 9.00 am – 6.00 pm and that this was a reasonable requirement for any Chairman of a large multinational company.

(3.8) Although Lord Ballyedmond’s office normally had two personal assistants, to run his office, Collette Brocklehurst successfully ran the office alone during part of 2006 until February 2007 when she left because of pregnancy and difficulties with travel arrangements. During the period that she was the only personal assistant, she occasionally required extra administrative support. On such occasions, Ms Kirk, the Personnel Manager, would suggest possible names of other staff to Lord Ballyedmond who would make the decision.

(3.9) When Collette Brocklehurst left the company, the Chairman’s office was without any personal assistant, and Harriet McKnight, the personal assistant of another director, was seconded on a temporary basis. Eventually, a new personal assistant was recruited, but she left without warning on 28 May 2007 after only a couple of weeks in the job.

(3.10) On 28 May 2007, Ms Kirk contacted Lord Ballyedmond to tell him that the new personal assistant would not be returning to the office. Lord Ballyedmond requested that the claimant go across to his office to operate the phone lines that day.

(3.11) It is accepted that the claimant did not know how to operate the switchboard, and Mr Martin McKavanagh, the IT Manager, was asked to attend and train her on the phones and computer. Another employee, Emelia Woskowiak, who was new to the company, was also asked to fill-in on a temporary basis and she received the same training on the telephones and computer on the afternoon of 28 May 2007. The claimant accepts that on 28 May 2007, she answered telephone calls and assisted with filing.

(3.12) Between 28 May and 22 June 2007, a pool of employees was asked to fill-in at the Chairman’s office on a temporary basis whilst a full-time personal assistant was recruited. Each employee worked no more than a week or two at a time. During that period, the claimant regularly covered Emelia Woskowiak on toilet breaks to ensure that the office was never left unattended.

(3.13) On Friday 22 June 2007 the claimant’s line manager, Mr Murdock, requested that the claimant help out at Lord Ballyedmond’s office. The claimant was reluctant to go and told Mr Murdock that she had her own workload. However, eventually she did agree to go to the office.

(3.14) The claimant remained in the Chairman’s office all day, answering telephone calls, and replying to invitations on the Chairman’s behalf. The claimant was assisted by another employee, Emer Rodgers, and although Lord Ballyedmond requested that the layout of the replies to invitations be changed on several occasions, there is no suggestion that Lord Ballyedmond was critical in any way about the claimant’s work.

(3.15) During the afternoon of 22 June 2007 the claimant received a telephone call from Louise Kirk. There was a dispute between the parties as to whether the claimant was told she would be required to remain in the Chairman’s office for four to five weeks, or whether, as Ms Kirk alleged, she was told to remain only for a few days possibly up to a week. What is not in dispute, however, is that the claimant was required to attend on the following Monday morning and she gave no indication to Ms Kirk that she would not do so.

(3.16) As Lord Ballyedmond was leaving his office on the evening of Friday 22 June he asked the claimant if she had the code to open the office. It is accepted that the claimant replied in bald terms that she would not be in the office on Monday. This was said in the presence of Lord Ballyedmond’s wife and Emer Rodgers. The tribunal accepts Lord Ballyedmond’s evidence that he was embarrassed and astonished at the claimant’s conduct. The claimant did not give any explanation for this statement, nor did she express any reservation about her ability to work in the office on a temporary basis. The claimant alleged that Lord Ballyedmond simply walked out of the office. Lord Ballyedmond on the other hand insisted that he told the claimant that he expected her to be in his office on Monday. The tribunal considers it highly unlikely that Lord Ballyedmond would simply have walked out without responding to the claimant’s statement and in preferring Lord Ballyedmond’s evidence takes into account the written statement from Emer Rodgers in which she states that Lord Ballyedmond’s response was ‘suit yourself Cara but I expect you in my office on Monday morning’. In any event, both parties agree that Lord Ballyedmond left his office with the expectation that the claimant would open the office on Monday morning.

(3.17) On Monday morning the claimant did not attend the Chairman’s office. Instead she went to her own office at 9.00 am and worked at her desk. The claimant accepted that she took the decision not to go to the Chairman’s office in the full knowledge that no alternative arrangement had been made to open the office, and that it would remain closed until her absence was detected.

(3.18) The Chairman normally expects a telephone call each morning at 9.00 am from his office to go through e-mails, recorded messages and his diary. There is no evidence that the claimant was aware of this arrangement. However, when no call was made on the morning of 28 June 2007, Lord Ballyedmond telephoned his office at approximately 9.20 am to be greeted by an answer machine.

(3.19) He then checked whether the claimant had arrived at work and having been informed that she was indeed present, he telephoned her directly. In response to questions by the Chairman for her non-attendance at his office, the claimant told the tribunal that her reply was “I am sorry but I cannot do that”. At the subsequent disciplinary hearing the claimant stated that she was unsure whether she had said she ‘could not’ or ‘would not’ do that. However, she did make it clear that she would not go to his office. The claimant accepts that she did not offer any explanation for her refusal to attend the office. Lord Ballyedmond told the claimant that she was suspended.

The claimant’s contract of employment

(3.20) The claimant’s contract of employment includes the following terms:-

“3. Notwithstanding the statement of the employee’s job title and normal hours of work contained in Clause 2 hereof:-

(a) the work which the employee is employed to perform shall include all work normally or properly done under the said job title and all such other work as it is reasonable in the circumstances from time to time for the company to require the employee to perform.

5 The following further obligations shall be observed and performed by the employee:-

(a) in the course of his employment the employee shall faithfully perform such duties and exercise such powers, authority and discretions as the company from time to time entrusts to him/her and shall in all respects obey all reasonable and lawful orders and comply with and conform to all reasonable and lawful directions and instructions as the company from time to time gives or imposes upon him/her.”

(3.21) The claimant’s terms and conditions of employment are also governed by the Company Handbook, last updated in 2006. A refusal to carry out a reasonable work instruction may constitute serious or gross misconduct depending on the circumstances. At Paragraph 6.3.2 examples of serious misconduct include:-

“ … insubordination or disobedience, but not to the extent where such disobedience leads to the inability of the instructing person to carry out their duties or puts the company, its products or employees at risk.”

At Paragraph 6.3.3 examples of gross misconduct include:-

“All deliberate refusals to carry out lawful reasonable requests from management.”

[Emphasis added]

The investigation

(3.22) The investigation was carried out by Mr Gareth McConville and Mr Kenneth Allen. The claimant accepted that both were longstanding employees and had no reason to be ill-motivated towards her. The Employee Handbook explains that the investigation should be a neutral fact-finding process. The purpose is to decide whether ‘to drop the matter, arrange informal coaching or counselling or arrange for the matter to be dealt with under the disciplinary procedure. If it becomes clear during the course of an investigation that formal disciplinary action is needed then the interview will be terminated and a formal hearing convened at which the employee will have the right to be accompanied’.

(3.23) The investigation was concluded in approximately 16 minutes. No other witnesses were spoken to, and no statements were taken. The tribunal accepts the evidence of Mr Allen that in conducting the investigation, it was established fairly quickly that there had been a ‘refusal’ to obey an instruction. The focus of the investigation therefore centred on whether the instruction was reasonable. The only basis on which the claimant asserted that the request was unreasonable was that she did not have any PA skills. At no time either during the disciplinary process or during the tribunal hearing did the claimant ever assert any other reason for her refusal to attend Lord Ballyedmond’s office on 25 June 2007.

(3.24) The claimant was asked whether she understood that there was a need for someone to be in the office to operate the phones. Her response was “I am not a PA why put me there”. It was also explained to the claimant that the request was reasonable because there may not have been any one else to go over to the office just to answer the phones. However, the claimant simply refused to accept that the request was reasonable. The tribunal notes the following passages from the investigatory meeting:-

· “ … I don’t want to be a PA not for one day, not for 4 or 5 weeks.”

· “ … This is not my job, I didn’t want to learn or be in that office. I want to do my job. I always do my job to the best of my ability and I never wanted to be over there.”

· “ … I said no and I would say no again.”

· “I explained to Louise at the time that I had no PA experience, I don’t have any PA skills and I don’t want to have.”

· “ … In all honesty if it was another manager I probably would go, but why ask me? There may be others who are better qualified as there are a lot of secretaries who work in Norbrook.”

(3.25) The investigators, concluded that formal disciplinary action was required for the following reasons:-

(a) there was no doubt that the claimant had refused an instruction;

(b) the instruction was reasonable because:-

· the claimant had previously worked in the Chairman’s office on 28 May 2007 and had covered Emelia periodically in the office;

· she had received training in operating the telephones;

· if she required additional training or assistance it would be made available to her;

· in all likelihood another employee would be working alongside her;

· the claimant had expressly told the investigators that if another manager, other than Lord Ballyedmond had made the request she would probably have gone.

The disciplinary hearing

(3.26) Following the investigation meeting, the claimant was sent a letter dated 26 June 2007 informing her that formal disciplinary action was considered appropriate. She was advised that the company may consider dismissal or other disciplinary action ‘should it be decided that [her] actions constitute serious or gross misconduct’.

(3.27) Following receipt of the letter, the claimant telephoned Louise Kirk and requested a copy of the notes of the investigation meeting, along with a postponement of the proposed disciplinary hearing, to enable her to prepare her case. In accordance with the Employee Handbook, the claimant was informed that the notes could not be taken off the premises, but she could come in and read them before the disciplinary hearing. Although the claimant did not do so, and saw them for the first time at the disciplinary meeting, the claimant accepts that the notes are accurate and a fair summary of the proceedings. The disciplinary hearing was postponed from 28 June 2007 until 3 July 2007.

(3.28) By letter dated 28 June 2007 the claimant was informed that the charge which she faced was:-

“That on Monday 25 June 2007 you refused a request to work in the Chairman’s office. This may amount to gross misconduct and could result in dismissal.”

(3.29) The claimant was also informed that she was entitled to be accompanied at the meeting by a single companion who was a work colleague or a trade union official. She was also entitled to call upon any witness to substantiate her version of events during the disciplinary hearing. The claimant was accompanied by her line manager, Mr Martin Murdock, at the disciplinary hearing.

(3.30) The disciplinary hearing was conducted by two senior employees, Mrs Rachel McNeill, Quality Assurance Manager, and Mr Martin Logan, Operations Manager. The claimant confirmed that neither of these employees had any reason to be ill-motivated towards her.

(3.31) At the disciplinary hearing the panel explored with the claimant her reasons for refusing the Chairman’s request to work in his office. The claimant was adamant that she did not have the skills to do the work, and refused to accept that Lord Ballyedmond simply wanted her to go and answer the telephones, although she accepted that was his instruction.

(3.32) She also asserted that she had difficulties using the switchboard, and when it was put to her that she had already taken phone calls on 28 May and 22 June, as well as periodically providing cover for Emelia, her response was “the phone didn’t always go”.

(3.33) It is evident from the notes that the panel went to great lengths to reason with the claimant, and to explain the valuable skills she did have given her length of service and position within the company. The following extract illustrates the point:-

“RMcN: You answer phones and give messages to Martin Murdock, he is the Financial Director of the company; it would have been the same as giving messages to Lord Ballyedmond.

Cara, if you were asked to go over to the Chairman’s office, which is the heart of the company, to keep the company running and keep us all in our jobs, if asked again would you go over?

CC: No.

RMcN: If you were asked by Martin to go over as a favour to him, would you go over?

CC: No.

RMcN: If you asked by Louise?

CC: No.

RMcN: Why not?

CC: It is not my job. I have worked in accounts all my life. If I wanted to be a PA I would have trained to be one.

And later:-

ML: Cara, you are a person the chairman knows and trusts and you have knowledge of the company. Anyone else would not be his natural choice to have. You would present a good case for the company. It is therefore hard for us not to see it as a reasonable request which you have refused. You say that you have no PA skills, but you have other skills. We have to make a decision was this gross misconduct and decide what action we should take. You say that you would say no again. I am surprised at that, are you sure that you would still say no?

CC: Yes.”

[Emphasis added]

(3.34) Mr Logan stated that he focused on whether the claimant would behave in the same way in the future because he was trying to ascertain if her conduct had been ‘in the heat of the moment’. The tribunal accepts his evidence that he could not understand the stance being adopted by the claimant. She had been asked to ‘hold the fort’ as a longstanding and trusted employee. If she had concerns about carrying out any duty, she could have discussed that with the Chairman with whom she had had a long working relationship.

(3.35) Mr Logan stated that the claimant’s repeated assertions that she would refuse the request if asked again impacted on the future ability of Louise Kirk and Lord Ballyedmond to manage her. He concluded that her action was clearly deliberate because she had stated on Friday 22 June that she would not be in Lord Ballyedmond’s office the following Monday and despite having the weekend to reconsider the matter she decided on Monday that she would not go. The panel therefore decided that the offence fell into the most serious category in that it amounted to ‘a deliberate refusal to obey a lawful reasonable request from management’.

(3.36) It is evident from the notes of the disciplinary hearing that the panel was conscious of the claimant’s length of service and her standing within the company. The tribunal refers to the following passages from the notes:-

“RMcN: The fact that you have been here for 30 years is one of the qualities the Chairman requires.

RMcN: You know names and how the company works, as you have been here for so long. A PA who is brought in from outside would not know that.

ML: Cara, would you say the Chairman trusts you, he knows you 30 years?

CC: I cannot answer that , you would have to ask the Chairman that.”

(3.37) The tribunal also accepts Mr Logan’s evidence that he had attended the dinner in the claimant’s honour three months earlier and knew that she had received a special gift and cheque from Lord Ballyedmond. There is no doubt that he was fully aware of the claimant’s standing in the company. The tribunal also accepts Mr Logan’s evidence that he considered the claimant’s refusal on two occasions to attend the Chairman’s office on 25 June 2007 to be gross misconduct, and that in the circumstances, it outweighed any mitigating factors.

(3.38) By letter dated 4 July 2007 a letter was sent to the claimant informing her that the decision of the disciplinary panel was summary dismissal with effect from 3 July 2007.

(3.39) The reasons for the decision were expressed as follows:-

“ … The panel believes upon consideration of the facts before it, that the deliberate refusal to carry out a lawful and reasonable request from Lord Ballyedmond to answer telephone calls in the Chairman’s office constitutes an act of gross misconduct. You deliberately refused to comply with a reasonable request from Lord Ballyedmond to go to the Chairman’s office on Friday 22^nd June 2007 and Monday 25 June 2007. At disciplinary interview you confirmed that you would still refuse to go. This leads the panel to conclude that there are no mitigating factors in your case and that dismissal is merited … .”

[Emphasis added]

(3.40) The tribunal accepts Mr Logan’s evidence that in reaching its conclusion that dismissal was the appropriate sanction, there was no interference in any way by either Lord Ballyedmond or any other employee of the respondent company.

The appeal

(3.41) By letter dated 5 July 2007 the claimant requested an appeal of the decision to dismiss her. The grounds of appeal were as follows:-

“ … You indicate in your letter that I refused to comply with a reasonable request from Lord Ballyedmond. I strongly disagree with this decision. The request was not, as you have suggested, ‘reasonable’ as it was not simply a matter of answering telephone calls and the position clearly demanded a level of IT knowledge and secretarial experience which, after 30 years as a Credit Controller, I do not possess.

I believe the request was a significant and fundamental alteration to the terms and conditions of my employment contract particularly as I was informed by Lord Ballyedmond and the Human Resources Manager that I would be required to continue in this role for an indefinite period, until a suitable replacement PA could be recruited. This was without consultation or agreement by me … .”

(3.42) The appeal was conducted by Mr Derek Rodgers and Mr Bill Toner, both longstanding employees. The claimant accepts that there was no reason why either person would be ill-motivated towards her.

(3.43) At the outset of the appeal hearing the claimant was provided with a copy of the notes from the disciplinary hearing. The claimant confirmed, both at the appeal hearing and before the tribunal, that the notes were a fair summary of the proceedings.

(3.44) The appeal panel clarified that the claimant had previously worked in the Chairman’s office and that she had been told by Lord Ballyedmond that he wanted her to ‘hold the fort’ and answer the phones. She was adamant however that she would inevitably have been required to do secretarial work also. Although there was no suggestion that she considered such work to be demeaning she continued to assert that she did not have the skills to do the work even on a temporary basis.

(3.45) She was presented with statements from Louise Kirk and Emer Rodgers for the first time. The claimant refuted the assertion in Louise Kirk’s statement that she had only been told she would be needed for a few days, possibly up to a week. She further refuted the assertion in Emer Rodger’s statement that on Friday 22 June 2007, Lord Ballyedmond had said in response to her statement that she would not be in his office on Monday morning “suit yourself Cara but I want to see you in this office on Monday morning.”

(3.46) It also emerged during the hearing that Bill Toner had spoken to Lord Ballyedmond although no statement had been taken from him. Mr Toner stated that he had been told by Lord Ballyedmond that he only required the claimant in his office for a few days.

(3.47) Mr Toner described the claimant as having approached the hearing with ‘a touch of arrogance’ and Mr Rodgers described the claimant’s demeanour as ‘sharp’ and ‘defiant’. The notes record that the panel tried to explain to the claimant why she would be the preferred choice in comparison to someone like Emelia who was Polish, had heavily accented English and was new to the company. Despite the obvious merit in this argument, the claimant refused to accept it. The following extract illustrates this point:-

“DR: You were not requested because of your PA experience but more due to your knowledge of the company over the past 30 years. You have contacts and know different people in the company.

CC: But I don’t know any more people then you do.

DR: Are you saying that you know no one in Norbrook?

CC: No.

DR: I will re-phrase that, do you know more contacts in the company then that of a new start like Emelia?

CC: I don’t know.

DR: You don’t know if you know any more than Emelia?

CC: I don’t know how many people Emelia knows in Norbrook.”

Later in the notes the following extract appears:-

“DR: But you would know more than Emelia?

CC: I don’t know what Emelia knows.

BT: I refer to when you worked with the Chairman before, in which you worked closely with him, in which your experience and expertise counts for a lot and you have knowledge which Emelia would not have. You have worked for the company for a long time and have an historical relationship from Mansfield Street and beyond with the Chairman and you know how to pick up the phone and call someone for assistance more then any new PA and its not just about how many people you know in the company but you have experience and know the expectations of the company and the Chairman.

CC: Made no comment.”

(3.48) From a careful reading of the claimant’s responses to the questions asked the tribunal has no difficulty accepting the evidence of Mr Rodgers and Mr Toner that the claimant was both defiant and slightly arrogant in her approach to the appeal.

(3.49) The panel concluded that the claimant had deliberately refused to obey a lawful instruction. In particular they were influenced by the claimant’s conduct on Friday 22^nd which meant that her refusal to attend the Chairman’s office on Monday was made after reflection on her part. Although Mr Toner expressed the view that a request to attend for four – five weeks, rather then a few days would have been a relevant factor, Mr Rodgers’ view was that in either case it would have been a reasonable request. However, Mr Toner was satisfied from his conversation with Lord Ballyedmond that the request was for a matter of days.

(3.50) In reaching the decision to uphold the dismissal, Mr Rodgers told the tribunal that it was difficult because he had known the claimant most of his working life, and he was conscious of her standing within the company. However, Mr Toner’s view was that a person who had been employed for 30 years should have been more obliging, and understanding of the needs of the company. He considered that factors which might otherwise be regarded as mitigating were in fact aggravating circumstances. At the end of the day, the panel’s unanimous view was that the outright refusal to obey a reasonable work instruction outweighed any mitigating factors. The decision to dismiss was upheld.

The law

4. Both parties submitted written submissions and bundles of authorities which were considered by the tribunal.

5. The issue for the tribunal is to determine whether the dismissal was fair or unfair in accordance with Article 130 of the Employment Rights (Northern Ireland) Order 1996. It is for the employer to show the reason for the dismissal, and that it is a potentially fair reason within Article 130(2) of the Order. In this case the respondent relies on the claimant’s conduct.

6. By Article 130(4) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

(a) depends on whether the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) must be determined in accordance with equity and the substantial merits of the case.

7. In Iceland Frozen Foods Ltd v Jones [1983] ICR 17, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by Section 57(3) of the [Employment Protection (Consolidation) Act 1978] (the equivalent provision to Article 130 of the Employment Rights (Northern Ireland) Order 1996) is as follows:-

(1) the starting point should always be the words of Section 47 themselves;

(2) in applying the section on industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably takes another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.

8. In the context of a misconduct case, Arnold J in British Home Stores v Burchell [1980] ICR 303 stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessary dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more then one element. First of all, there must be established by the employer the fact of that belief that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test and the test all the way through, is reasonableness, and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.

9. Article 130A(2) of the 1996 Order provides that if the employer does not comply with the requirements of the statutory dismissal and disciplinary procedure set out in the Employment (Northern Ireland) Order 2003 the dismissal will be automatically unfair. Insofar as is material, Part 1 of Schedule 1 of the Order provides:-

“Step 1 : statement of grounds for action and invitation to meeting

1(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 : Meeting

2(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless:-

(a) the employer has informed the employee what the basis was for including in the statement under Paragraph 1(1) the ground or grounds given in it; and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

10. Even if the dismissal is not automatically unfair, Article 130A(2) of the 1996 Order provides that if there has been any failure by the employer to follow any other procedure that ought to be followed, the dismissal may nevertheless be unfair. However, if the employer establishes that he would have dismissed the employee even if he had followed a fair procedure, then procedural unfairness, of itself, is not a reason to hold the dismissal to be unfair. (Alexander v Brigden Enterprises Limited [2006] IRLR 422; Kelly-Madden v Manor Surgery [2006] EAT/0105/06; Software 2000 v Andrews [2007] IRLR 568.)

11. Harvey on Industrial Relations and Employment Law, Volume 1, D1 [1550] sets out three different circumstances in which dismissal for a first offence may be justified. These are:-

(1) where the act of misconduct is so serious that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct. This is effectively dismissal for gross misconduct;

(2) where disciplinary rules of the company have made it clear that particular conduct will lead to dismissal. This seems to be so even if, without reference to the rules, dismissal would be regarded as unfair; and

(3) where the employee has made it clear that he is not prepared to alter his attitudes so that a warning would not lead to any improvement. Again, it seems that if the employee remained silent on the issue of his future intention, or indicated that he would desist from the conduct in the future, dismissal would not otherwise be justified.

The tribunal’s conclusions

12. Whether the claimant committed a disciplinary offence by failing to comply with a request made by Lord Ballyedmond on 25 June 2007

The tribunal concludes that the disciplinary and appeal panels were entitled to conclude that the request was reasonable for the following reasons:-

(1) The Chairman found himself in the situation where he had no personal assistant to run his office in circumstances where the office is the focal point of communication for both internal and external callers and normally required two full-time personal assistants.

(2) In the interim, whilst a new permanent assistant was being recruited he depended on a pool of employees to ‘fill-in’ or ‘hold the fort’ simply to keep the office open by answering telephones and carrying out basic administrative tasks.

(3) The claimant asserted that the request was unreasonable because she was not a trained PA. However, there was no question of either the claimant or any of the other employees being expected to fulfil the full range of personal assistant duties. Nor was there any evidence that Lord Ballyedmond had been critical of the claimant’s efforts during the periods she had provided cover in his office prior to 25 June 2007. The tribunal would add that having heard the claimant’s evidence we find the assertions regarding her inability to open e-mail attachments or to add e-mail attachments less than credible in view of the fact that she used e-mail and was clearly a competent and highly reliable employee.

(4) The respondent employs a full-time IT team who were available at all times to assist if any employee had any difficulty with either the switchboard or the computer.

(5) The claimant’s contract of employment specifically states at Clause 3:-

“3. Notwithstanding the statement of the employee’s job title and normal hours of work contained in Clause 2 hereof:-

And at Clause 5 states:-

“5 The following further obligations shall be observed and performed by the employee:-

(b) in the course of his employment the employee shall faithfully perform such duties and exercise such powers, authority and discretions as the company from time to time entrusts to him/her and shall in all respects obey all reasonable and lawful orders and comply with and conform to all reasonable and lawful directions and instructions as the company from time to time gives or imposes upon him/her.”

The claimant was therefore contractually obliged to obey the instruction whether she was required to work in the Chairman’s office for one day or four to five weeks.

13. Was dismissal for that offence within the range of reasonable responses of an employer

The tribunal accepts that it was open to the respondent to treat the claimant’s misconduct as either serious or gross misconduct. The tribunal is satisfied that there was ample evidence on which a reasonable employer could conclude that the employee had committed an act of gross misconduct. Paragraph 6.3.3 contains a list of examples of gross misconduct which include “all deliberate refusals to carry out lawful reasonable requests from management”. It is the deliberate nature of such an act which distinguishes it from “ … insubordination or disobedience but not to the extent where such disobedience leads to the inability of the instructing person to carry out their duties or puts the company, its products or employees at risk amount only to serious misconduct”.

14. The tribunal is mindful that it must only consider the reasonableness of the respondent’s conduct, and must not substitute its own view for that of the employer. In reaching the conclusion that the employer acted reasonably in treating the claimant’s conduct as gross misconduct, the tribunal takes into account the following matters:-

(1) Both the disciplinary and appeal panels went to considerable lengths to explore the claimant’s reasoning and thought processes leading to her decision not to attend the Chairman’s office on Monday 28 June 2009.

(2) They ascertained that she first indicated her refusal to attend on the previous Friday. She had the weekend to re-consider that stance, and her decision to refuse Lord Ballyedmond’s request without explanation on Monday 28 June was made after reflection. The claimant confirmed to the tribunal that she had indeed given the matter considerable thought over the weekend before making the decision.

(3) Throughout the disciplinary and appeal hearings, the claimant was repeatedly asked to re-consider how she would behave in the future, if a similar request was made. It is clear from the record of those meetings that there were no circumstances in which the claimant would agree to carry out what the tribunal accepts was a lawful and reasonable instruction.

15. The tribunal must then consider whether it was reasonable in all the circumstances to treat the claimant’s gross misconduct as justifying the dismissal. The tribunal considers that in this case there is a band of reasonable responses to the claimant’s conduct within which one employer might reasonably take one view, another quite reasonably take another.

16. The tribunal is satisfied that the decision to dismiss was within the band of reasonable responses for the following reasons:-

(1) The claimant’s 30 years unblemished service does not alter the fundamental nature of the employment relationship. It is a general principle underlying the contract of employment that the employee must obey the lawful and reasonable orders of the employer.

(2) The claimant’s adamant refusal to countenance any circumstances in which it would be reasonable to ask her to temporarily work in the Chairman’s office, even to answer the telephones, along with her strident assertion that she would refuse if asked to do so in the future represented a considered decision not to accept the authority of the employer. Mr Mulqueen submitted that the respondent ought to have given a final written warning, and if the claimant did in fact refuse the same request in the future, then further disciplinary proceedings would have been appropriate. The tribunal does not accept that reasonableness required the respondent to take this approach. The tribunal accepts Mr Logan’s evidence that the claimant’s clearly expressed intention not to alter her conduct in the future justified the conclusion that the ability of both Lord Ballyedmond and Louise Kirk to manage the claimant in the future would be seriously undermined.

(3) In terms of mitigating circumstances, it is evident from the notes that all those involved in the disciplinary process were conscious of the claimant’s length of service and standing with the company. What was absent in terms of mitigation was any reasonable explanation from the claimant for her conduct. The tribunal also considers that Mr Toner’s view that the claimant’s length of service and standing within the company were actually aggravating rather than mitigating features was reasonable in the context of this case. The tribunal accepts that the claimant of all people ought to have understood the situation Lord Ballyedmond had found himself in and the need to be flexible in the interests of the company.

(4) The claimant alleged that the entire process was a sham and the decision was a foregone conclusion. The tribunal does not accept that allegation. On the contrary, it is clear from the notes and in particular from the passages set out at Paragraph (3.33) above that the disciplinary panel repeatedly ‘threw the claimant a lifeline’ in an attempt to persuade her to reconsider her position. If the decision had been pre-determined, the tribunal considers it highly unlikely that the panel would have given the claimant so many opportunities to reflect on the stance which she had adopted. The tribunal considers that had there been any evidence of a conciliatory attitude on the claimant’s part, the outcome of the disciplinary hearing may well have been different.

17. Whether the dismissal was automatically unfair

The claimant submitted that the respondent failed to comply with the requirements of the statutory dismissal and disciplinary procedure contained in Part 1 of Schedule 1 of the Employment (Northern Ireland) Order 2003 set out at paragraph 8 above.

Specifically, the claimant submits that the Step 1 letter was not compliant with the statutory procedure because (in contrast to the respondent’s dismissal letter dated 4 July 2009) it did not state that the claimant ‘deliberately refused to comply with a reasonable request from Lord Ballyedmond to go to the Chairman’s office on Friday 22 June as well as Monday 25 June 2007. In essence, the claimant submits that she was dismissed for an offence which was not notified to her in the Step 1 letter.

18. It is clear from the authorities that the statutory procedures represent a minimum standard of fairness. In Alexander v Brigden Enterprises Limited [2006] IRLR 422, Elias J explained the extent of the employer’s obligations as follows:-

“38 … At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need to do more than state the issues in broad terms … at Step 1 the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty.

In other cases it may require no more then specifying, for example, that it is lack of capability or redundancy. That is consistent, we think, with the approval which this tribunal has adopted in relation to grievance procedures in the Canary Wharf and Other cases. Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.

39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met.”

[Emphasis added]

19. The tribunal accepts the respondent’s submissions that the letter dated 26 June 2007 referring to the claimant’s deliberate refusal to carry out a lawful reasonable request from management ‘identified the issue in broad terms’; and ‘identified the nature of the misconduct in issue’. As such it did comply with Step 1.

20. In the alternative, the letter sent on 28 June 2007 stated “that, on Monday 25 June 2007, you refused a request to work in the Chairman’s office” clearly satisfied the requirements of Step 1.

21. Although the misconduct was the claimant’s refusal to work in the Chairman’s office on Monday 28 June 2007 there were in fact two refusals to do so – one on Friday 22^nd as Lord Ballyedmond was leaving the office, and the other on the morning of 25 June 2007. The relevance of the claimant’s conduct on 22^nd, as far as the disciplinary panel was concerned, related to the deliberate nature of the refusal on the 25^th. This was not a ‘heat of the moment’ action. It was an action which had been carefully considered by the claimant over the weekend. The tribunal does not accept that there was any misunderstanding on the claimant’s part regarding the conduct which led to the disciplinary process.

22. The tribunal is therefore satisfied that the dismissal was not automatically unfair.

23. If the decision was not automatically unfair, was it nevertheless procedurally unfair. If so, is it likely, or was there a chance that such unfairness would have made no difference to the outcome

The claimant submitted that the dismissal was procedurally unfair pursuant to Article 130A(2) of the 1996 Order and the general principles relating to procedural unfairness set out in paragraphs 6 and 7 above. The claimant alleged that her dismissal was unfair for the following reasons:-

(1) The respondent failed to send the claimant copies of all relevant documents from the investigation meeting in advance of the disciplinary hearing and failed to send copies of all relevant documents from the disciplinary hearing in advance of the appeal hearing.

(2) The claimant asked her line manager, Mr Murdock, to attend the disciplinary hearing on her behalf. The notes record that Mr Murdock was told by Rachel McNeill that he was a witness and therefore he could not participate at any time as he was there to take notes on behalf of the claimant. The claimant alleged that this direction was in breach of Section 6.4.2 of the Employee Handbook which states that “ … the employee can arrange for the attendance of relevant witnesses at the hearing to substantiate their case if appropriate …”. If on the other hand, Mr Murdock was acting as the claimant’s companion then the direction was in breach of Section 5.8 of the Employee Handbook which states that “ … the companion has a statutory right to address the hearing …”.

(3) The respondent referred to statements taken from Emer Rodgers and Louise Kirk for the first time during the appeal hearing.

(4) The claimant was informed during the appeal hearing that Bill Toner had spoken to Lord Ballyedmond and had received confirmation from him that she was only required to attend his office for a few days and not four to five weeks.

(5) The investigation was seriously deficient in that statements were not taken from Mr Martin McKavanagh, IT Manager, Emelia Woskowiak, Lord Ballyedmond and a detailed statement from Louise Kirk. In particular, the investigation did not explore the extent of the claimant’s IT skills or her suitability to work in the Chairman’s office even for a short time. Nor was there any investigation of the work which the claimant would actually be required to do, or for how long she was required to carry out the duties.

24. The tribunal’s conclusions are as follows:-

(1) The respondent concedes that the notes from the investigation and disciplinary meetings were not sent to her in advance. However, the respondent relies on paragraph 6.12 of the Employee Handbook which states:-

“Full or redacted copies of any meeting records should be given to the individual concerned for as long as they require them for their perusal on the company’s premises. However due to the confidential nature of the company’s business, these records cannot be removed from the company premises.”

The claimant was offered the opportunity to peruse her notes internally although she did not do so. In any event, the claimant accepts that the notes are accurate, and the tribunal is not satisfied that the failure to send the notes to the claimant’s home rendered the procedure unfair.

(2) Mr Logan gave evidence that he did not believe that the notes accurately reflected what in fact Rachel McNeill had said to Mr Murdock because he was familiar with the Employee Handbook and he did not recall Ms McNeill making any inaccurate statements. However, although Mr Murdock agreed that Ms McNeill had stated what is recorded in the notes, he did not feel that he was not allowed to speak and would have interrupted if he felt there was anything which he could add. It was not contended by either the claimant or Mr Murdock that in fact he was prevented from saying anything which might have assisted the claimant. In those circumstances the tribunal does not accept that any unfairness occurred.

(3) The tribunal accepts that the respondent ought to have provided the claimant with copies of the statements from Emer Rodgers and Louise Kirk in advance of the appeal hearing. Whilst the tribunal accepts that these statements should have been provided before the hearing, the tribunal is not satisfied that this rendered the hearing unfair. Both statements dealt with net points, namely the claimant’s conversation with Lord Ballyedmond on Friday 22 June when she informed him that she would not be in his office on Monday 25 June, and the length of time the claimant was required to work in the Chairman’s office. The claimant remained steadfast in her account of both of these matters, and it was not suggested during the tribunal hearing that the claimant may have acted differently if she had had the statements in advance.

(4) The tribunal accepts that a written statement rather than a verbal statement should have been taken from Lord Ballyedmond and that the claimant should have had an opportunity of considering its contents prior to the appeal hearing. However, as with Louise Kirk’s statement, the matter related solely to the length of time the claimant was required to work in the Chairman’s office. The claimant’s account throughout the disciplinary process and indeed to the tribunal was that she was instructed to be in the office for four to five weeks. It was not suggested that the claimant’s position would have altered even if she had been aware of Lord Ballyedmond’s verbal statement in advance of the hearing.

(5) In determining whether the procedure was procedurally unfair because statements were not taken from Martin McKavanagh (IT Manager), Emelia Woskowiak, Louise Kirk and Lord Ballyedmond, the tribunal is mindful that the obligation on the employer is to carry out a reasonable investigation. What is reasonable depends on all the circumstance of the particular case. The tribunal is satisfied that the respondent did carry out a reasonable investigation, notwithstanding that statements were not taken from the above persons as part of the investigation. The tribunal’s reasons are as follows:-

(1) There was no issue in this case that the claimant had refused to obey an instruction from Lord Ballyedmond. The central issue was whether the instruction was reasonable, and if so, what penalty was appropriate in all the circumstances.

(2) The investigation established that:-

· The instruction from Lord Ballyedmond was to go over and answer the telephones.

· There was no question that the claimant understood the reasons why temporary cover was needed.

· She had previously provided cover answering telephones and doing basic administration tasks on 28 May, 22 June and periodically to relieve Emelia Woskowiak during that period.

· After a weekend’s reflection, she refused, without any explanation, to obey the instruction and was adamant that if requested again she would do the same thing.

· Notwithstanding any deficiencies in the claimant’s switchboard or computer skills, she did have other valuable skills given her length of service and position within the company.

· Taking these matters into account along with her contractual obligations, the employer had reasonable grounds to conclude that the claimant had committed gross misconduct and that dismissal was within the band of reasonable responses.

25. However, in view of the claimant’s assertion that the investigation was deficient and procedurally unfair the respondent called evidence from the persons from whom it was alleged statements ought to have been taken. Although as the Court of Appeal pointed out in Rogan v South Eastern Health and Social Care Trust [delivered October 2009] the evidence of witnesses which was not considered by a disciplinary or appeal panel is not normally relevant such evidence is relevant where the respondent relies on Article 130A(2) of the 1996 Order to show that he would have dismissed the employee even if he had followed a fair procedure. In essence the respondent contends that even if the disciplinary and appeal panels had taken statements from Martin McKavanagh (IT Manager), Emelia Woskowiak, Louise Kirk and Lord Ballyedmond it would have made no difference to the decision whether to dismiss the claimant.

26. The tribunal summarises the evidence of those witnesses as follows:-

(26.1) Martin McKavanagh

Mr McKavanagh confirmed that he had trained the claimant on the telephones and to do basic computer tasks on the morning of 28 May 2007. He remained at the Chairman’s office all day and trained Emelia Woskowiak in the afternoon. Whilst training Emelia the claimant took live calls and used him as a reference point for any questions. Whilst he accepted that the claimant was unsure and unfamiliar with the telephones, at no time did she suggest that she could not use the switchboard and he was satisfied that she understood the basics after the training session. Subsequently he was asked to return and assist Emelia with a particular difficulty she had with the telephones and he decided to produce an instruction manual to assist her and anyone else working in the office. The original draft was prepared on 28 May and the final document was produced on 11 June 2007. At no time did the claimant ever seek further training or assistance from him although she was told that she could do so and either he or one of this team would have been available either by telephone or on site to provide further instruction.

(26.2) Emelia Woskowiak

Ms Woskowiak was employed as a Quality Assurance Co-Ordinator and she formed part of the pool of employees who filled in at the Chairman’s office during the relevant period. Although the duties were quite different from her normal job description she considered the request to be reasonable. She confirmed that she and the claimant dealt with e-mails, phone calls, post and putting correspondence in the correct trays. She was aware that Mr McKavanagh was available to assist with any difficulties at any time although she felt that generally she knew the basics after her training on the afternoon of 28 May. She could not recall any discussion with the claimant regarding any inability on her part to carry out the tasks. After 28 May, Ms Woskowiak worked in the office every day and the claimant covered for her during toilet breaks and food breaks on a regular basis. At no time did the claimant ask Emelia for help. Although she had worked as a PA for some four months at the start of her career she did not consider that she had all of the skills to do the role on a permanent basis and she did not agree that she had far more experience than the claimant.

(26.3) Louise Kirk

Ms Kirk was the Human Resource Manager of the respondent company. She explained the importance of the Chairman’s office and in particular the importance in terms of communication both internally and externally. Any member of staff wishing to contact Lord Ballyedmond does so through the office and his mobile number is not made available even to senior members of management. She confirmed that a pool of employees worked temporarily in the Chairman’s office from 29 May to 15 June but not for more than two weeks at a time and only after liaison with their line managers. Like the claimant, not all of those employees had previously carried out the type of work required in the Chairman’s office. However, no one else complained that the request was unreasonable and no one else refused to work in the office. Ms Kirk did not accept that the claimant had expressed reluctance to attend the Chairman’s office on the earlier occasion of 28 May although she agreed that the claimant did not know how to use the telephones and so Martin McKavanagh was asked to train her. A permanent PA was appointed on 23 July 2007. Ms Kirk was adamant that the instruction to her from Lord Ballyedmond on 22 June was to ask the claimant to work in the office for a few days possibly up to a week. At no time was she instructed to ask the claimant to work for four to five weeks and if such an instruction had been given it would have been necessary to liaise with Martin Murdock to ensure that the claimant’s own work could be adequately covered during that period. No such conversation occurred with Mr Murdock. On the afternoon of 22 June she conveyed Lord Ballyedmond’s instruction to the claimant. The claimant did not decline the instruction but merely stated that she would speak to Lord Ballyedmond herself. When she left the office on Friday evening she was not aware of any issue regarding the claimant’s attendance at the Chairman’s office on the Monday morning. On Monday morning she was contacted by the Chairman who relayed the events of Friday afternoon and his conversation with the claimant on Monday morning which had resulted in his decision to suspend her. It was Ms Kirk’s decision which employees should be asked to carry out the investigation, disciplinary and appeal hearings.

(26.4) Lord Ballyedmond

Lord Ballyedmond confirmed that the claimant was never asked to be his PA but rather to act as a ‘general hand’ answering telephones, taking messages, reminding him of diary appointments and basic office tasks. The role of a full-time PA in his office is a much wider role. Lord Ballyedmond explained that to work in his office he requires confidentiality and trust, maturity and common sense and the ability to deal with basic tasks. He had known the claimant for 30 years and regarded her as highly reliable and competent. He had no concerns whatever about the quality of her work. In her role as a director of Ballyedmond Farms Ltd she attended meetings, looked after invoices, took minutes and ran the company administratively. Lord Ballyedmond stated that all employees have similar clauses in their contracts regarding flexibility because that is the philosophy of the company and the reason the company performs successfully. He had previously accommodated the claimant personally when she needed to spend more time at home by making her redundant and allowing her to start work part-time the following working day. Although he stated that he could not recall the amount of redundancy payment paid, it is accepted that the amount was £25,000. In the period after 28 May, Lord Ballyedmond was dependent on members of his staff to ‘pull him out’ of the difficulty. One of those employees was the claimant. He described how he was embarrassed and astounded when the claimant stated in a defiant manner, in front of his wife and another member of staff that she would not be in his office the following Monday after he attempted to explain the office code to her. Lord Ballyedmond was adamant that he had not required the claimant to attend for four to five weeks and what he needed was someone with ‘a solid face’, good judgment and who could deal with matters as they arose. The role was mainly answering telephones and basic administration. He described the telephone conversation with the claimant on Monday morning which had led to his decision to suspend her. He did not agree that the decision was taken lightly. Whilst he could not say whether and if so, how many telephone calls may have been missed during the period that the office was closed on Monday morning, his view was that the potential consequences in terms of public image were serious if a caller had been attempting to contact the office.

27. Having considered the evidence the tribunal is satisfied that even if the process was procedurally unfair in that statements were not taken from these witnesses, their evidence would have made no difference to the outcome. On the contrary the tribunal is satisfied that this evidence supported the conclusions and reasoning of both the disciplinary and appeal panels.

28. The tribunal is therefore satisfied that the dismissal was not unfair and the claim is dismissed.

Vice President:

Date and place of hearing: 12 – 15 October 2009,

21 October 2009;

23 October 2009;

30 October 2009, Belfast

Date decision recorded in register and issued to parties: