Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/05132_09IT.html
Cite as: [2010] NIIT 5132_9IT, [2010] NIIT 05132_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 05132/09

CLAIMANT: Aileen Loughrey

RESPONDENT: The Royal British Legion

DECISION

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

Constitution of Tribunal:

Chairman: Mrs Watson

Members: Mr Carroll

Mr Atcheson

Appearances:

The claimant did not appear and was not represented

The respondent was represented by Mr Lewinsky, BL, instructed by Beachcroft LLP, Solicitors

1. Issue for determination

Was the claimant unfairly dismissed from her position of General Assistant at the respondent’s premises in Portrush and if she was, what if any compensation should she be awarded.

2. Preliminary Issue

2.1 The tribunal was informed by the clerk that the claimant would not be attending the hearing of her claim. Her husband had telephoned earlier to inform the tribunal that the claimant was suffering from vomiting and diarrhoea. The clerk was asked by the claimant’s husband if the tribunal could proceed in the claimant’s absence and was informed it could.

2.2 The tribunal was informed that the previous day, the respondent’s representative had telephoned to inform the tribunal that the adverse weather in England had resulted in the cancellation of most flights. As a result, the instructing solicitor and both witnesses would have to make alternative travel bookings thereby incurring further costs. An adjournment was requested. However the claimant would not agree to this request and the hearing date was confirmed. The claimant then told the clerk that she would attend the hearing and would be bringing witnesses.

2.3 On the basis of this assurance, Mr Lewinsky, Counsel for the respondent, had flown from Manchester the previous day and was in attendance. His instructing solicitor and two witnesses had made new bookings and were expected to be at the tribunal building by 11 a.m. The tribunal directed the clerk to telephone the claimant and inform her that the hearing would begin at that time and the tribunal would then consider whether to proceed in her absence but, if necessary, the tribunal could delay the start of the hearing until after lunch to facilitate the attendance of the claimant and her witnesses. The clerk informed the tribunal that the claimant’s husband had informed her that the claimant was in bed and neither she nor her witnesses would attend. He was told that it was probable that the hearing would continue in her absence.

2.4 At the beginning of the hearing, Mr Lewinsky requested that the hearing proceed in the absence of the claimant. The respondent is a wholly public funded charity and it had incurred considerable expense ensuring that all their personnel were present for the hearing date only after having been assured the previous day that it would take place as listed. The respondent had also prepared bundles of all the relevant documentation in the case for the assistance of the tribunal. This documentation included minutes of the two appeal hearings attended by the claimant and her Trade Union representative and where they had given her account of the matters in dispute between the parties.

2.5 Having considered the application of Counsel for the respondent, the tribunal decided to proceed with the hearing in compliance with the overriding objective of Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

3. Sources of evidence

3.1 Rule 27 (6) of the 2005 Rules provides that when a tribunal wishes to dispose of proceedings where a party has failed to attend, “it shall first consider any information in its possession which has been made available to it by the parties.” The tribunal considered the content of the originating claim form dated 9 April 2009 and the documentation contained in the respondent’s bundle. Oral evidence was given by two of the respondent’s management; Ian Philip, Operations Manager, and Sue Freeth, Director of Welfare.

3.2 At the conclusion of the hearing, the tribunal rose to consider the oral and documentary evidence before it and arrived at the decision to dismiss the claim. The tribunal informed the respondent’s representatives and indicated that reasons for the decision would be forwarded in due course to both parties. These are set out below in summary form.

4. Reasons

4.1 The claimant has claimed that her dismissal on 13 January 2009 by the respondent from her post of General Assistant was unfair and contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (as amended) (ERO).

4.2 The facts of the case (in summary) are that the claimant’s employment by the respondent as a General Assistant in its residential respite facility at Portrush began on 16 February 1996. During 2006, there were difficulties in staff relationships and the claimant had gone on sick leave due to work related stress in January 2007. The Manager, Mr Greg Wilson, carried out an investigation relating to grievances against an employee, Sinead Donnelly. The claimant believed that there had been deficiencies in that investigation and that it had not been thorough because some witnesses had not been spoken to. Sinead Donnelly had resigned but the claimant was still concerned by Ms Donnelly’s actions in the town, particularly what the claimant saw as false claims Ms Donnelly was making about the residence and its staff. The respondent was unable to address this issue as Ms Donnelly was no longer its employee. The claimant was also concerned about other potentially difficult issues between her and other staff members. Mr Wilson tried to reassure the claimant about this matter in order that she might feel able to return to work, but to no avail.

4.3 On 3 September 2007, the claimant was referred by the respondent to an examination by an occupational health advisor who advised it, on 6 September 2007, that the claimant’s continued absence from work was because of work issues rather than any medical problem.

4.4 A few days later, on 11 September 2007, the claimant lodged a grievance against Mr Wilson. This was investigated, with difficulty, by Mr Philip who notified the claimant by letter dated 9 January 2009 that, apart from one element which had been addressed, her grievance had not been upheld.

4.5 The claimant appealed this decision and, accompanied by her Trades Union representative, met with Jane Tyndale who was then Head of Care Services with the respondent. Ms Tyndale, who is no longer employed by the respondent, upheld Mr Philip’s decision. Ms Tyndale’s letter to the claimant to inform her of this decision included a proposal to request that Mr Philip talk to the claimant in order to come up with a plan to ease the claimant’s return to work which would have included a facilitated meeting between the claimant and her line manager, Mr Wilson.

4.6 The claimant refused to attend a return to work meeting and informed the respondent in writing that she would not return to work at Bennet House ‘while Greg Wilson was still employed there.’

4.7 The respondent sought a further report from its Occupational Health Advisor. The response advised that the claimant’s reported medical problems were ‘not those which prevent her from carrying out her normal duties. …I am therefore of the opinion that it is a management issue rather than a medical problem that is keeping this lady off work and until these issues are resolved there will be no return to work.’

4.8 The respondent tried several times to arrange a meeting with the claimant to address any continuing issues she had and provided her with details of other staff welfare officers she could approach including its Employee Assistance Programme. The claimant refused all such efforts on the basis that she was on certified sick leave for a further year.

4.9 In a letter dated 21 August, the respondent wrote to the claimant. In its view, all concerns raised to date by the claimant had been fully investigated. She was invited to raise any further concerns for investigation. In addition, the respondent set out the matters which Mr Philip wanted to discuss with her. These included the medical reports obtained, any reasonable adjustments that could be made and possible redeployment vacancies should she feel unable to return to her substantive position. Also mentioned for discussion were the “impact upon the exigencies of the services due to your ongoing absence since 29 January 2007, (and her) continuing employment at the Legion.”

4.10 The letter informed the claimant that if she failed to attend this meeting without good reason, it might proceed in her absence and could result in a range of decisions being made, including dismissal.

4.11 In his oral evidence, Mr Philip informed the tribunal that the continued absence of the claimant involved extra expense for the charity. He had hoped that the claimant might have been willing to accept the assistant manager taking over line management of the claimant from Mr Wilson. As she continued to refuse to engage with her employer, Mr Philip took the decision to dismiss the claimant on grounds of capability.

4.12 The claimant’s appeal against the decision to dismiss her was heard by Sue Freeth with a representative from Human Resources. Mr Philip presented the management case. The claimant attended and was represented by Mr Dawson.

4.13 Ms Freeth upheld the decision to dismiss the claimant. The letter to the claimant to inform her of this decision states, inter alia,

“From the evidence reviewed, it is clear that the Legion made numerous attempts … to try and resolve any perceived issues with regards to your working relationship with Greg Wilson. You failed to attend any of the meetings arranged other than the appeal hearing and provide further information in a timely manner. “

4.14 Ms Freeth also referred to the fact that Mr Philip, at the appeal hearing, had indicated that the claimant’s post had been available to her throughout her absence, including at the Appeal Hearing, and that she had been offered facilitation to ease a return. She also noted that the claimant had been offered the support of the respondent’s Employee Assistance Programme which had been declined. Ms Freeth’s evidence to the tribunal was that she had concluded that the respondent had taken all reasonable steps to facilitate the claimant’s return to work but that she had refused to do so.

4.15 In their response to the originating claim form, the respondent had given alternative reasons for the dismissal. When asked for the principal reason as required by Article 130 (1)(a) of the ERO, Mr Lewinsky confirmed that the respondent relied on Article 130(1)(b), ‘some other substantial reason’ and submitted that in all the circumstances of this case, this met the test of reasonableness required by the statute. He also referred the tribunal to instances in the claimant’s correspondence where she refused to return to work until Mr Wilson, her line manager, was no longer there. In Mr Lewinsky’s submission, it was unusual in a case of unfair dismissal to find that the employer was willing to have an employee return to work but the employee refusing to do so.

4.16 In arriving at its decision to dismiss the claim, the tribunal took into consideration the well known guidance set out in the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 as to the correct approach a tribunal should adopt in such cases. This is;

(1) The starting point should always be the words of the (relevant) section;

(2) In applying the section, an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether (it) considers 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 take 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.

4.17 The tribunal noted that Mr Philip was tasked to deal with the claimant’s grievance against Mr Wilson on 24 September 2007. Despite numerous letters, telephone calls and emails, his (apparent) first meeting with the claimant was at the hearing of her appeal against dismissal on 12 January 2009. The only other time that the claimant met with any member of the respondent’s staff was the earlier hearing of her appeal against the outcome of her grievance. The claimant did not at any stage demonstrate any willingness to play any constructive role in seeking to assist her employer by identifying those issues that were at the root of her problems at work in order that they might be addressed and her return to her post might be facilitated. In those circumstances, the tribunal find that the response of the respondent falls within the band of reasonable responses that a reasonable employer might take in such circumstances and dismisses this claim.

4.18 After the tribunal had delivered its decision, Mr Lewinsky made an application for costs against the claimant. He was advised that the tribunal could not consider such an application in the absence of the claimant. After further consultation with his instructing solicitor, Mr Lewinsky advised that he would not continue with that application.

Chairman:

Date and place of hearing: 14 January 2010, Belfast.

Date decision recorded in register and issued to parties: