Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06211_09IT.html
Cite as: [2010] NIIT 06211_09IT, [2010] NIIT 6211_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6211/09

CLAIMANT: David Butler

RESPONDENT: Capita Business Services Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed by the respondent and the claimant’s claim for unfair dismissal is dismissed by the tribunal, without further order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mrs T Hughes

Mr I Atcheson

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Ms Valerie Flaherty, of the respondent’s Human Resources Department.

Reasons

1. The tribunal heard oral evidence from the claimant and from Ms Michelle Tunstall and Mr John Thompson of the respondent. The tribunal also noted documentation contained in an agreed bundle of documents submitted to the tribunal.

The Issue

2. In his claim to the tribunal dated 22 June 2009, the claimant claimed unfair dismissal. In a response to that claim, dated 3 September 2009, the respondent conceded that the claimant had been dismissed from employment, contending that the claimant had been fairly and properly dismissed for gross misconduct and that in all respects the dismissal was fair. Accordingly the tribunal had to determine whether or not the dismissal of the claimant was fair or unfair.

The Tribunal’s Findings of Fact

3. In consequence of the oral and documentary evidence before it, the tribunal on the balance of probabilities determined the following material facts:-

(1) The claimant commenced employment with the respondent on 10 November 2007 as a TV Licence Enforcement Officer.

(2) The tribunal noted the evidence of Ms Michelle Tunstall, the respondent’s Regional Manager, both in regard to Ms Tunstall’s witness statement which Ms Tunstall read to the tribunal and also in respect of cross-examination of Ms Tunstall by the claimant. A part of this evidence related to the issue of the induction and training received by employees, including the claimant, upon taking up this employment. The tribunal further noted the evidence of Mr John Thompson, Head of Field Enforcement of the respondent. That evidence was contained both within Mr Thompson’s witness statement (read to the tribunal) and also from his oral evidence upon cross-examination. The tribunal also noted the evidence of the claimant in regard to the matter of the induction and training afforded to the claimant by the respondent. Having noted this evidence, the tribunal finds that the claimant did receive induction and training in respect of the claimant’s primary job functions to a similar degree as that afforded to all other employees carrying out work of the same nature as the claimant. Further, the evidence disclosed that a facility was afforded to the claimant to raise any training or other issues with the respondent at line management level that might have otherwise required further explanation or necessitated further training.

(3) Amongst other matters, the training afforded to the claimant involved his being trained in regard to the investigation of potential television licence fee evasion. As this matter potentially constituted a criminal offence, interviews had to be conducted by Enforcement Officers (who seem also to have been referred to as “Visiting Officers”) in a rather formal manner. Such interviews were instructed to be carried out formally using the respondent’s form TVL178 and in accordance with specific written Visiting Officer’s Procedures instructions, these being provided to the claimant as part of the training. In evidence, both Ms Tunstall and also Mr Thompson stressed the importance of correct and proper procedures being followed. This was so for the reason that the TVL178 form was used as the evidential basis of any prosecution of potential offenders. As was explained by these witnesses to the tribunal, if the procedures followed were deficient in any regard, prosecutions might fail, with attendant undesirable consequences. Also, as part of the procedure the respondent’s Visiting Officers were required to issue a formal caution. This was expressed in identical terms to that stipulated in Police and Criminal Evidence Act (“PACE”) procedures. If that formal caution were not to be properly given, any future prosecutions might have been unsuccessful.

(4) Both Ms Tunstall and also Mr Thompson stressed in their evidence to the tribunal the vital importance of Field Officers being entirely professional and proper in all of their dealings and in their approach to this work. They had, in view of the particular nature of the work entrusted to them, to be totally trustworthy and entirely beyond any reproach.

(5) A number of cases arising out of the respondent’s investigations were listed for prosecution at Newtownards Magistrates Court on 12 January 2009. On that date 12 persons who had been summonsed attended the court and pleaded not guilty. Allegations were made at the time by these that the recording of their interviews was false or deficient in some regard. The interviews in question had all been conducted by the claimant and he had completed the requisite TVL178 forms in connection therewith. As a consequence of the difficulties experienced at Court on that day, the respondent arranged for an investigation to be conducted into the claimant’s work that had been completed in the month of December 2008. The examination conducted revealed that out of 43 statements which were submitted by the claimant, 16 concerned customers whom the claimant said had refused to sign the record of interview on the TVL178 form. That proportion appeared to the persons conducting the investigation to be unusually large. This observation was made for the reason that the general experience was that most people interviewed normally did not refuse to sign the forms. Further to that, five of these customers provided written declarations stating that they had not been cautioned by the claimant, in accordance with PACE procedures.

(6) The respondent’s management was sufficiently concerned at the outcome of this initial investigation that a decision was taken that a formal investigation ought then to be proceeded with. The claimant attended an investigation meeting held on 13 February 2009. The respondent arranged to interview a number of witnesses as part of the investigation. Ms Tunstall, who had not been involved at any previous stage with the claimant nor with any part of the earlier investigation, arranged to review the evidence available concerning the matter and made a decision to proceed with a disciplinary hearing. A letter dated 4 March 2009 was sent by the respondent to the claimant inviting him to attend the disciplinary hearing. The letter outlined the issues which were to be addressed at the disciplinary hearing and stated that one possible outcome to the matter might be dismissal. The claimant was advised of his right to representation.

(7) The claimant duly attended the disciplinary hearing on 12 March 2009. He was represented by his trade union, the Communication Workers’ Union. Prior to the hearing, the claimant was provided with the details of all the complaints that had been made against him and the evidence upon which these complainants were made and he was warned of the serious nature of the matter under consideration. In the course of the hearing the claimant was afforded an opportunity to put forward any case which he wished concerning the matter.

(8) At the conclusion of the disciplinary hearing Ms Tunstall adjourned the meeting to consider her decision. She addressed her mind to all of the material issues including the claimant’s explanation afforded for apparently not following the Visiting Officer’s instructions. In that specific regard the claimant stated that he had not been trained to follow these procedures as these were stated in the instructions. Ms Tunstall further reviewed in some detail the cases of the individuals who had pleaded not guilty to the charges at Court and drew particular conclusions from that evidence and information. In conclusion, after reviewing the information and evidence Ms Tunstall arrived at the conclusion that the claimant had failed to complete his interview records in a truthful and accurate manner and that the statements which he had signed prior to the Court attendance were inaccurate and untruthful. This misconduct was classified as gross misconduct by Ms Tunstall and she drew the conclusion that there was a clear breach of the Visiting Officer Procedures and the respondent’s Code of Practice. By letter dated 20 March 2009 she notified the claimant of the decision taken which was to summarily dismiss the claimant. He was advised of his entitlement to appeal.

(9) The claimant exercised his entitlement to appeal and the appeal hearing was conducted by Mr John Thompson who had not previously met with the claimant nor had Mr Thompson been involved in the matter up to that point. By letter dated 1 April 2009 Mr Thompson invited the claimant to an appeal hearing and the appeal took place on 9 April 2009. The claimant was accompanied by his trade union representative. The claimant was afforded an opportunity to advance any arguments upon appeal and, upon conclusion of the appeal, Mr Thompson’s decision was to uphold the original decision and the sanction of dismissal for gross misconduct. That decision was communicated with reasons to the claimant by letter dated 30 April 2009 which summarised Mr Thompson’s reasons for his decision and confirmed Mr Thompson’s view that the records had been falsified and that the claimant had committed acts of gross misconduct. Therefore the decision to dismiss the claimant stood.

The Applicable Law

4. In respect of the law in regard to unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. The specified reasons include conduct on the part of the employee. In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439. The guidance from that case specifies that in applying the statutory test the tribunal must consider the reasonableness of the employer’s conduct, not simply whether the tribunal considers the dismissal to be fair and in judging the reasonableness of the employer’s conduct the tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. 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. The function of the 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. However, if the dismissal falls outside the band it is unfair. In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, the Court of Appeal in England held that the range (or band) of reasonable responses test applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason. The case of British Homes Stores v Burchell [1980] ICR 303 is also relevant to misconduct cases. The test is, firstly, whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time; there must be established the fact of that belief. Secondly it must be established that the employer had reasonable grounds upon which to sustain that belief. Thirdly it must be established that the employer had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

The Tribunal’s Decision

5. The tribunal has made careful note of the oral and documentary evidence in this case and has made appropriate findings of fact, as mentioned above. The tribunal also has had full regard to the statutory provisions regarding unfair dismissal as set out above. It is for the employer to show the reason or reasons for dismissal and that any such reason is a potentially fair reason. In this case, the reason given by the respondent for the dismissal was gross misconduct. The statutory test further provides that once the employer has shown the reason for dismissal and that this is a potentially fair reason the test of whether the dismissal is fair or unfair falls to be decided in accordance with the provisions of Article 130 of the 1996 Order, as above-mentioned. The tribunal takes heed of the cases mentioned above and also the recent guidance in regard to the application of the statutory test from the Northern Ireland Court of Appeal in the case of Patrick Joseph Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 which referred to the earlier case of Dobbin v Citibus Limited [2008] NICA 42. That judgement of the Court of Appeal also mentions with approval the cases of Iceland Frozen Foods v Jones, Sainsburys Supermarkets v Hitt and British Homes Stores v Burchell. As these cases make clear, it is not for the tribunal, in its function as what has been referred to as “the industrial jury”, to substitute its own decision for the employer engaged in the disciplinary process. The tribunal’s task is, rather, to determine whether or not the decision to dismiss was taken after a reasonable and proper investigation that lead to proper and fair conclusions of fact on the part of the employer and whether the decision to dismiss on the employer’s part, in all of the circumstances, fell within the band of reasonable responses of a reasonable employer.

6. In this case, the tribunal notes that, having been given some proper cause for concern on account of information that came to the employer’s attention emerging from the events at Court on 12 January 2009, the respondent conducted a thorough and a detailed investigation into the possible merits of certain allegations made against the claimant. Evidence was gathered fairly and properly and witness statements were taken. The decision to institute disciplinary proceedings was entrusted to a person of senior status within the respondent’s organisation, Ms Tunstall, who had not been involved in any way with the matter up to that point. Ms Tunstall reviewed the evidence available and decided to conduct a disciplinary hearing. That disciplinary hearing was properly called and conducted and an opportunity was fairly and properly afforded to the claimant, with representation, to advance any arguments that he felt appropriate. Ms Tunstall then took a decision upon the matter. Her decision was that there had been gross misconduct on the claimant’s part. This was arrived at by Ms Tunstall having carefully reviewed the evidence in the matter. Her decision appears to have been reached after due and entirely proper and adequate deliberation of all the material factors. That decision is entirely in accordance with the principles deriving from the cases referred to above (see for example Iceland Frozen Foods v Jones, Sainsburys Supermarkets v Hitt and British Homes Stores v Burchell and the principles and guidance therein contained as is referred to above).

7. Once the decision to dismiss had been taken, an opportunity was fairly and properly afforded to the claimant to appeal the decision to dismiss to a more senior authority within the respondent’s organisation. Mr Thompson had not been involved with the matter up to that point and he conducted the appeal. At the appeal, Mr Thompson afforded a fair and proper opportunity to the claimant, who was represented, to advance any argument. The tribunal is satisfied that Mr Thompson took a fresh look at the matter from the perspective of one who had not been involved with the case prior to that point. Having done so, Mr Thompson took the view, as had Ms Tunstall, that under the particular circumstances of the matter gross misconduct had been committed, the seriousness of which was apparent due to the particular circumstances attaching to the matter. The importance of the proper conduct of these interviews and the essential nature of the evidence gained for successful prosecutions of potential offenders was of material significance.

8. Looking at all of this, the tribunal finds, by unanimous decision, that the decision to dismiss the claimant on grounds of gross misconduct under all of these circumstances was a decision which fell within the band of reasonable responses of a reasonable employer. Accordingly the dismissal was fair, both procedurally and substantively, in all respects. The finding of Mr Thompson, on appeal, likewise was a decision that was fair and reasonable in all respects. That being the case, the claimant was fairly dismissed. The tribunal determines that the claimant’s claim shall be dismissed on the merits, without further order.

Chairman:

Date and place of hearing: 16 December 2009, Belfast.

Date decision recorded in register and issued to parties: