Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCausland v Old Warren Partnership Limited [2010] NIIT 07582_09IT (22 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07582_09IT.html
Cite as: [2010] NIIT 7582_9IT, [2010] NIIT 07582_09IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 7582/09

CLAIMANT: Fiona McCausland

RESPONDENT: Old Warren Partnership Limited

DECISION

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

Constitution of Tribunal:

Chairman: Mr I Wimpress

Members: Ms F Graham

Mr G Hunter

Appearances:

The claimant was represented by Mr Potter, Barrister at Law instructed by Thompsons McClure, Solicitors

The respondent was represented by Mr Kennedy, Barrister at Law, instructed by
Shean Dickson Merrick, Solicitors.

The Claim and the Response

1. The claimant's claim is one of unfair dismissal arising from the termination of her employment with the respondent on 9 September 2009. In her claim form, the claimant complained that she had been automatically unfairly dismissed. In its response, the respondent denied that the claimant was automatically unfairly dismissed and alleged that the claimant was fairly dismissed for gross misconduct.

2. In accordance with the directions given at a Case Management Conference on 26 March 2010 the claimant’s solicitor helpfully set out in a letter the matters that were agreed between the parties and the issues in dispute as follows:-

(1) It was agreed that the claimant was dismissed by the respondent.

(2) Whether the respondent has established that the reason for dismissal was gross misconduct which arose from the claimant's conduct on 4 August 2009.

(3) (a) If that was the reason for dismissal, whether the respondent went ahead with the disciplinary hearing with knowledge that the claimant was unfit due to ill-health.

(b) Whether the allegation of ill-health was genuine.

(4) Whether the claimant was notified of her dismissal and given a right of appeal.

(5) Whether there was a reasonable investigation.

(6) If the statutory dismissal and disciplinary procedure was not followed and/or if the dismissal was otherwise procedurally unfair whether the claimant would have been fairly dismissed if a proper procedure had been followed.

(7) If the dismissal was unfair, whether the claimant's conduct contributed to her dismissal.

(8) If the claimant was unfairly dismissed, what is the appropriate level of compensation having regard to the claimant's alleged conduct following dismissal?

Sources of Evidence

3. The tribunal received a bundle of documents from the respondent and heard oral evidence from the claimant, Mr Philip Dean, Mr Denis Paisley, Mrs Maura John, Ms Sharon Jamison, Miss Tracy Black, Mr Neil Fyffe and Mr Philip Jamison.

The Facts

4. The claimant became involved in voluntary community work in the early 1990's in the Old Warren Community Association which is based in the Old Warren estate in Lisburn. She became a committee member and at first she was the only resident on the committee but she encouraged others to join including her husband, Mr John McStea. The claimant undertook voluntary work for the organisation on a full time basis from 1994 to 1997. Mr Paisley became involved in 1996/1997 and Mr Dean at a later date. A new strategic direction was taken in 1999 which involved seeking funding for community projects from a wide range of bodies. At first the majority of applications for funding were made by the claimant but in later years Mr McStea and Mr Paisley were also involved. According to the claimant, there was a considerable amount of peace money available to address conflict issues and to assist ex prisoners, some of whom were involved in the respondent organisation.

5. The claimant left the organisation in 2006 and worked for the National Lottery for a year before obtaining paid employment with the respondent on 1 October 2007 as a youth worker in the Lisburn South Streets Ahead Project as described in her contract of employment. In this capacity the claimant was primarily involved in the development of youth work and coordinated separate groups which had their own internal management structure. She was also responsible for accounts, funding and community groups until her dismissal.

6. The organisation became a limited company in 2004 because it was required to do so by funders. From 2004 the organisation was run by a committee comprised of four or five key workers or volunteers. The main persons involved during this period were the claimant, Mr McStea, Mr Paisley, Mr Aidie Bird and to a lesser extent Mr Francie Ferris. Mr Dean was both a director and the secretary of the organisation. The line management arrangements were rather unusual to say the least. The claimant both line managed Mr Paisley who was both a youth worker and a director of the respondent organisation and was line managed by him. The respondent operated from three premises in Lisburn; 79 Glebe Walk; the Laganview Enterprise Centre and the Raggedy Bap Playhouse at the time of the events that led to these proceedings.

7. We are satisfied that in early 2009 there was a considerable degree of conflict about the role and direction of the organisation. The claimant sought to broaden the composition of the organisation mainly by the greater involvement of statutory bodies, people with ethnic backgrounds and voluntary bodies such as Cloona Oasis. Others, including Mr Dean, took a contrary view and believed that the organisation in becoming more statutory body led, was losing its community emphasis. In order to further her aims in this regard the claimant met with Mr Paisley in June 2009 and gave him directorship forms appointing two Polish men as directors which were to go to the Companies Office. It is common case that Mr Paisley agreed to do so but ultimately did not comply with this request as he wanted to speak to the board of directors about it. Mr Paisley raised his concerns about the claimant’s request at a meeting of the board of directors that took place on 22 July 2009. It was resolved that the board would meet with them and ascertain why they wanted to become directors and what they had to offer.

8. At the same meeting the future of the organisation was discussed. It was noted that community groups, community businesses and Lisburn PSP had all left the organisation. The prevailing view at the meeting was that the organisation should be wound up as it had served its purpose. The directors therefore decided that they should start working on an exit strategy. As a first step in this process the directors decided to send letters to staff informing them of their thinking. As a result a letter was drawn up bearing the same date and addressed to the claimant and her husband Mr John McStea. Mr Dean arranged for Mr Paisley to hand deliver copies of the letter to the claimant and her husband. The letter was signed by Mr Dean and read as follows:

“Dear Fiona

Following a meeting of Old Warren Partnership Board of Directors on Wednesday 22^nd July 2009 it was agreed that due to developments within former partnership members there is now a need to work towards an exit strategy for the partnership. The groups involved are now working within their communities autonomously and therefore the need for the Partnership has diminished. This is seen as a positive development and one which is testimony to the development work that the Old Warren Partnership has been involved in over several years for the benefit of disadvantaged communities in Lisburn City.

The Partnership will continue to provide a vehicle for the current funded projects but will not be seeking any further funding for projects as it is felt that the individual groups have the capacity to develop their own projects.

If you have any queries please contact the Secretary of the Board of the Old Warren Partnership at Laganview Enterprise Centre.

Yours sincerely

Philip Dean”

9. As directed, Mr Paisley hand delivered the letters to the claimant and her husband on 4 August 2009. An altercation ensued during the course of which the claimant on her own admission behaved badly and was abusive to Mr Paisley. The nature and degree of the abuse was disputed and in her evidence to the tribunal the claimant sought to explain her behaviour on the basis that she was provoked by the contents of the letter. For reasons that we will come to, the claimant did not at any time provide her account of the incident on 4 August 2009 to the respondent prior to her dismissal.

10. According to the claimant, Mr Paisley arrived at the Laganview Enterprise Centre at 10.15 and was waving two letters above his head. He said that he hadn't slept for a week and needed to get this “off his head”. The claimant read the letter as she went up the stairs and when she saw that the letter was signed by Mr Dean, she believed that Mr Paisley had betrayed her. She began screaming and waving the letter above her head. According to the claimant, everything seemed to be happening in slow motion. She “flipped” and began screaming expletives saying, “wanker, wanker, wanker, wanker.” In her evidence to the tribunal, the claimant quite fairly accepted she had “lost it” and was out of control. The claimant then asked Mr Paisley what was happening about the new directors and why he had not submitted the forms. Mr Paisley replied that the partnership was not going to be allowed to continue and he admitted that he had lied about having submitted the forms. She went to speak to Olga Farley in the Welcome Project about the letter and asked Mr Paisley what would happen to the Welcome Project and he replied that he did not know. She also asked Mr Paisley why he had held the directors forms back and he did not answer. The claimant went out and made phone calls to a Mr Donaldson and a Mr Nicholls. She was in an emotional state but calmed down after speaking to them. Another employee, Mr McMullan, was also present and he inquired about his job. The claimant replied that it would be sorted. She told Mr Paisley that she couldn't bear it if he betrayed her and Mr Paisley replied that he knew. The claimant also told Mr Paisley that what he had done was not lawful and asked him why the Old Warren Partnership would not be allowed to continue. Mr Paisley replied that he believed that the community associations felt left out. The claimant pointed out that Mr Paisley was the community representative and that he should be telling the community associations what was happening. He said that he knew but that the Old Warren Partnership would not be allowed to continue. The claimant said that if he was working under duress, he should not be working with young people. He should stand up for young people and should be able to stand up to duress. The claimant questioned how Mr Paisley could ask young people to stand up to other people to tell the truth when he was weak himself.

11. Mr Paisley, in his evidence to the tribunal and in a statement made in the course of the investigation, claimed that he was bombarded with comments by the claimant such as "coward, cowardly bastard", "bunch of wankers" and "lowest of the low". The community association was referred to as "a dozen eejits” and reference was made to individuals not being able to read or write or being too busy playing strip poker and all being related. The claimant was screaming and waving her hands about. The claimant accused the directors of acting illegally and stated that the letter was meaningless. Mr Paisley responded that the community did not feel part of the Laganview Enterprise Centre or the project and this comment was met with tirades of abuse. During the course of the meeting two employees Olga Farley from the Welcome Project and Mr McMullan were brought in and told by the claimant that Mr Paisley was responsible for them losing their jobs. Mr Paisley was also told by the claimant and her husband that he was not fit to work with young people. The claimant concluded the encounter by ripping the letter up in front of Mr Paisley and shoving it down his jacket which she then zipped up to his neck. Mr Paisley felt extremely intimidated by their behaviour and described himself as being totally dumbfounded and traumatised by the abuse. He also referred to being locked in at one stage and feeling powerless.

12. As is apparent there were several areas of dispute. For example, Mr Paisley was adamant that the claimant called him a cowardly bastard whereas the claimant denied doing so. The claimant also denied aiming a tirade of abuse at Mr Paisley. The most striking area of dispute was Mr Paisley’s allegation that the claimant ripped up the letter, shoved it down his jacket and zipped it up to his neck. It was put to Mr Paisley that he was telling lies about this in order to make her conduct appear worse and that he was not intimidated and shocked. The claimant conceded that she “scrunched the letter up” Mr Paisley stuck to his account. It is not necessary for the tribunal to attempt to resolve these factual disputes. These are primarily matters to be determined in the context of the internal disciplinary process and provided that the disciplinary body acts reasonably and fairly, a tribunal will not gainsay its conclusions.

13. We note that the claimant’s husband was both present throughout these exchanges and participated in the abuse that was directed at Mr Paisley. He was surprisingly not called to give evidence and therefore could not corroborate the claimant’s account or take issue with Mr Paisley’s account. Nor was there any suggestion that Mr Paisley was in any way at fault in terms of his behaviour during this encounter. It is clear that Mr Paisley was badly shaken by the abuse meted out to him by the claimant and her husband.

14. The claimant came in to work on 5 August 2009. According to Mr Paisley the atmosphere was unbelievable. He exchanged greetings with the claimant who behaved as if nothing had happened but had no further conversation with her. Mr Paisley felt unable to continue working at the Lagan View Enterprise Centre and left at lunchtime and relocated to the respondent’s premises at 79 Glebe Walk.

15. On 14 August 2009, the directors met to discuss the matter and decided that the allegations should be investigated and that the claimant and her husband should be suspended due to the seriousness of the allegations and pending the outcome of the investigation. They also decided to obtain legal advice about what was happening and the procedures to be followed. Mr Paisley attended the meeting but did not take part in the vote due to his involvement in the incident. Miss Black volunteered to assist with the investigation and speak to anyone who was in the Laganview Enterprise Centre on 4 August 2009. On this basis, Miss Black was directed to obtain statements from anyone who had witnessed the events of 4 August 2009.

16. Miss Black spoke to twelve women who were attending a course at the Laganview Enterprise Centre on the day in question. Three of those present agreed to make statements. She also spoke to Mr Jonathan McMullan in relation to a letter that he had sent to the respondent. Miss Black did not speak to Olga Farley as she was on holiday and in addition Miss Black was hospitalized during this period. Miss Black collected the statements and gave them to Mr Dean. Statements were obtained from Mr McMullan, Dennis Paisley, Francis Ferris, Janice Mitchell, Lindsay Cherry and Danielle Bagoyne. Miss Black told Mr Dean and Mrs Jamison that she could not take a statement from the claimant as it would be too traumatic. She was heavily pregnant and had health problems and did not want to put herself through it. They told her that the claimant would get a chance to speak at the disciplinary meeting on 4 September 2009. Mr McMullan submitted a further statement directly to the directors without any involvement by Miss Black. Nor was she involved in the preparation of Mr Paisley's statement. Mr Ferris also sent a statement to the directors after she spoke to him.

17. Mr McMullan's statement recorded that he attended a meeting on 4 August 2009 with the claimant, Mr McStea, and Denis Paisley. The claimant and her husband left Mr McMullan and Mr Paisley alone for a short period. Mr McMullan asked Mr Paisley what was going on and he replied that the claimant and her husband had started on him over a letter that he had just delivered. Mr Paisley went on to explain that the directors were looking for an exit strategy for the partnership and would not be seeking further funding. The claimant and her husband then returned to the office and locked the door behind them. Mr McStea asked Mr Paisley to explain to Mr McMullan what he had done and why he was losing his job. Mr McStea invited Mr McMullan to read the letter and Mr McMullan queried how it affected him as he was on a 15 month funded post that was due to finish in June 2010. Neither the claimant nor her husband answered these questions but instead took it in turns to shout abuse at Mr Paisley. They also asked him questions about the directors meeting. Mr Paisley appeared extremely frightened. He was sitting slumped in a chair and every time he attempted to answer he was shouted down with a tirade of abuse. Mr Paisley was also questioned about not having signed a company form to enlist two members of the Polish community as directors. When Mr Paisley attempted to explain he was called a “fucking lying bastard”. In addition, Mr Paisley was questioned about his role as a volunteer and his position as a Youth Worker. They said that he was not fit to work with young people as he was only a “dirt-bag”. The claimant also alleged that Mr Paisley was a fraudster and that she would “get him done”. The claimant left the room several times during the course of the meeting and on one occasion he saw that she was crying. The meeting lasted an hour and Mr Paisley was shouted at and abused throughout. Although none of this was directed at Mr McMullan he was very stressed and upset by it. Mr McMullan’s letter of 6 August 2009 addressed a subsequent incident on 4 August 2009 when he was approached by the claimant and her husband. According to Mr McMullan, they improperly sought to have him to sign a registration form nominating Mr McStea as a director of the company.

18. Mr Paisley's statement provided his account of the event on 4 August 2009 when he met with the claimant and her husband to deliver the letter from the directors about the future of the partnership. In accordance with the terms of the letter Mr Paisley explained to them that the partnership was ineffective and not representative of the community which no longer felt welcome at the Laganside Enterprise Centre. Mr Paisley’s statement went on to describe the abuse he received from the claimant and her husband as outlined at paragraph 11 above.

19. In his statement, Mr Ferris described hearing shouting whilst he was delivering training to a women’s group at the Laganview Enterprise Centre. He saw the claimant stamping up the corridor shouting and waving paper at him as she entered the Welcome Project office. When Mr Ferris went to ask what was wrong, the claimant pushed him aside and entered the counselling room, locking it behind her. Mr Ferris returned to the class but found it nearly impossible to continue due the continuous screaming from the counselling room. Mr Ferris also recorded that he saw Mr McStea shaking his fists at Mr Paisley and calling him a “fucking bastard”.

20. Ms Janice Mitchell was undertaking training and according to her statement she saw the claimant coming down the hall in the centre like a "beaten bear” waving a letter in the air. There was shouting and Mr Ferris went to see what was happening. The shouting continued and during a break she heard someone say "Liar, you're a liar, you know there's been phone calls and you know you're telling lies". Ms Mitchell was told by another member of the class that Mr Paisley had just been called a lying bastard and she then sent Mr Paisley a text and advised him to get out. She also asked Mr McMullan to tell Mr Paisley to leave.

21. Ms Lindsay Cherry also attended the training course and in her statement records hearing continuous shouting and screaming coming from the counselling room. She also saw Mr McStea waving his fists in the air and calling Mr Paisley “a cowardly bastard”.

22. Ms Bagoyne recorded hearing shouting and seeing Mr McStea ranting and raving and waving his hands around “like a nut". During a break she heard Mr McStea shouting something about a phone call and calling Mr Paisley a lying bastard. Ms Bagoyne told Ms Mitchell about this and she sent a text to Mr Paisley telling him to leave. The shouting continued until the end of the course.

23. Mr Dean also received a letter from Mr McMullan dated 6 August 2009. Mr McMullan informed Mr Dean that he had to take time off work and he refused to come back to work in the Centre as he could not cope with the pressure.

24. On 14 August 2009, Mr Dean wrote to the claimant and advised her that she was being suspended on full pay pending the outcome of an investigation into serious allegations that had been made against her. Mr Dean was guided by his solicitor, Ms Maura McKay, throughout the disciplinary process and she also drafted the letter of suspension. The letter was sent to the claimant by registered post at her home address, 19 Warren Gardens, Lisburn, on the same day. It was delivered to the claimant's home by post but no-one was at home. As a result the letter was returned to the Post Office undelivered. A postal slip was left in the claimant’s external mail box advising that the letter could be collected from the Post Office but it was never picked up by the claimant. It emerged during the claimant's evidence that the key to the mail box had been lost and registered delivery slips could not be retrieved easily. Mr Dean also hand delivered a copy of the letter to the claimant's home on 19 August 2009. No-one was at home to take delivery of the letter and he therefore put the letter in a mail box.

25. There was no investigatory meeting with the claimant and therefore no opportunity for her to give her side of the story or state her case in advance of the disciplinary hearing.

26. Notwithstanding her suspension the claimant continued to attend her place of work in the Laganview Enterprise Centre until the end of August. There appears to have been a lack of resolve on the part of management to take appropriate action to rectify this self evidently unsatisfactory state of affairs. Mr Dean was unwilling to ask anyone to speak to the claimant in person about her suspension due to her reaction to Mr Paisley on 4 August 2009 and he did not want to inflame the situation or expose anyone else. Mr Dean also claimed that there were problems gaining access to the Centre as the locks had been changed. We do not understand how this could have prevented access during the day time.

27. On 28 August 2009, Mr Dean wrote to the claimant and invited her to attend a disciplinary hearing on 4 September 2009. The letter was sent by ordinary post to the claimant’s home address and a copy was also hand delivered to the claimant's home by Mr Dean. There was no dispute that the claimant received this letter and it was in fact given to the claimant in person by her husband in her office in the Laganview Enterprise Centre. The letter set out in detail the nature of the allegations against the claimant and was the most important letter in the disciplinary process. It reads as follows:

"Dear Fiona

Further to my letter of 14^th August when you were suspended from your employment with Old Warren Partnership I now request that you attend a disciplinary hearing at 1.30 pm on the 4^th day of September 2009 at 79 Glebe Walk.

The hearing is to deal with allegations of misconduct against you which allegedly took place at the Laganside Enterprise Centre on the 4th of August 2009. In particular you are alleged to have acted in an aggressive and belligerent manner towards Dennis Paisley using foul and abusive language and making insulting and derogatory comments about him and his work. These comments were allegedly made loudly so that other persons using the centre could hear them. It is alleged that this resulted in Mr Paisley suffering fear, upset, trauma and embarrassment. It is further alleged that you brought Jonathan McMullan into the room where the verbal attack on Mr Paisley was taking place and that you wrongly accused Mr Paisley of being responsible for Mr McMullan losing his job. Finally it is alleged that you subsequently sought to induce Jonathan McMullan to sign company registration forms which he had no authority to sign.

Mr McMullan has complained that the incident also caused him trauma and upset to the extent that it made him ill and as a result he has refused to return to work in the building.

Further details of the alleged misconduct will be given to you at the meeting and you will have a chance to explain your actions. If your explanation is not considered satisfactory then you will be disciplined in accordance with the company’s disciplinary procedure. As the allegations against you are of serious misconduct, one outcome of the disciplinary hearing could be your summary dismissal by reason of gross misconduct.

You are entitled to be accompanied at the meeting by a trade union representative or by a colleague of your choice. That person can either act as your representative and address the meeting or merely attend as your witness. However that person cannot answer questions on your behalf. I would be grateful if you would let me know by the 2^nd day of September 2009 whether you wish to be accompanied and by whom.

If there is anything which is not clear at the meeting you should say so immediately. If you think that you have not had an opportunity to put your case as fully as you wish you should also say so.

If you are dissatisfied with any action taken by your employer as a result of the hearing you will have a right of appeal which will be explained to you in a letter confirming the outcome of the hearing.

In the meantime if there is any matter that you wish to raise with me please contact me directly [our emphasis].

Yours faithfully

Philip Dean

Secretary”

28. In her evidence to the tribunal, the claimant described the impact of this letter on her and said that it made her feel numb when she read it out to a trade union representative who was in the office at the time.

29. The claimant attended her general practitioner, Dr Ryan, on 2 September 2009 and he gave her a two week sick line. On the same day, the claimant took the original sick line and a copy to the Laganview Enterprise Centre. According to the claimant, she gave the original to Ms Jennifer Spence who worked as an administrator in the Laganview Enterprise Centre and said “That is my sick note”. Ms Spence replied, “I will put it on the payroll file". The claimant did not seem surprised by this and in her evidence to the tribunal indicated that this was usually what Ms Spence did with sick lines. The claimant did not give any instructions to Ms Spence as to how to process the sick line. She left the copy on Mr Paisley's desk. We note in passing that this was a rather different approach from communicating directly with Mr Dean as his letter of 28 August requested.

30. As the claimant was aware, Mr Paisley had not worked in the Laganview Enterprise Centre since 5 August 2009 and had relocated to 79 Glebe Walk. Having relocated, Mr Paisley took no steps to arrange for mail to be forwarded from the Laganview Enterprise Centre to his new place of work. Mr Paisley did not know what would happen to mail placed on his desk during his absence. Mrs John would however pass any correspondence about youth work to Mr Paisley if she saw him in the evening. Prior to his departure on 5 August 2009 Mr Paisley shared the office with the claimant and Ms Spence. In normal times the sick line would have come to either him or Ms Spence and would have been placed on the payroll file. Mr Paisley accepted that Ms Spence was the crucial person to contact if an employee was not coming in to work and that the directors could have asked or required Ms Spence to produce the payroll file. The claimant did not seek a postponement of the disciplinary hearing on account of her ill-health which seems to us to have been the obvious and sensible thing to do. Mr Dean was unaware that the claimant was off work due to ill-health but accepted that the Laganview Enterprise Centre was the proper place to deliver the sick line.

31. A disciplinary panel comprised of Mr Dean and Mrs Jamison convened on 4 September 2009. Copies of the witness statements were brought to the hearing to be given to the claimant. The panel read the statements and formulated questions in advance of the hearing. The claimant did not attend and the panel did not receive a copy of her sick line. In these circumstances the panel having taken legal advice, quite properly did not proceed with the hearing and adjourned the proceedings in order to give the claimant a further opportunity to attend.

32. A letter inviting the claimant to a further hearing was sent directly after the hearing on 4 September 2009. The letter offered the claimant three alternative dates for a further hearing on either 9, 10 or 11 September 2009. Mr Dean asked the claimant to advise as to her preference by 10.00 am on Tuesday, 8 September 2009 and warned that if she did not do so the hearing would take place on Wednesday, 9 September 2009 at 10.00 am. Mr Dean went on to state that if the claimant failed to attend that meeting without satisfactory explanation it would proceed in her absence.

33. The letter was both sent by ordinary post and hand delivered to the claimant's home address by Mr Neil Fyffe, a taxi driver who was employed by Mr Dean. Mr Dean decided to use this method of delivery as well as ordinary post because there had been no confirmation that other letters sent by recorded delivery were received by the claimant. Mr Fyffe delivered two envelopes to the claimant’s residence, one addressed to the claimant and the other addressed to her husband. Mr Fyffe knocked the door but there was no answer and so he put the envelopes in the mail box on the wall. He could not recall the house number or indeed whether there was a house number. He believed that the claimant’s house was on the right on the end of a terrace. He was positive that he delivered the letters to the claimant's house as he had picked up the claimant and Mr McStea from it in the past. Mr Fyffe could not be sure on what date he delivered the letters but it was the only occasion that Mr Dean asked him to make a delivery to the McStea residence.

34. There was no contact from the claimant in response to Mr Dean’s letter of 4 September 2009 and as a result the hearing was convened on 9 September 2009 as indicated. The claimant did not attend the reconvened disciplinary hearing and it proceeded in her absence before the same panel. According to Mr Dean, the panel went through the disciplinary process in as far as possible which included reading the statements, the complaints, the contract, the disciplinary procedures and a pre prepared list of questions. Mr Potter was critical of the prepared questions in that they did not include asking whether the claimant acted as alleged and why she reacted to the letter as alleged. We accept the truthfulness of Mr Dean's answer that she would have been given an opportunity to explain. Mr Dean’s and Mrs Jamison’s list of matters considered varied slightly but it is clear to us that they were considering the same material that included all of these documents. It was also suggested that they should have examined the letter of 4 August 2009. Mr Dean maintained that this was not necessary as he was the author of the letter and therefore fully aware of its contents.

35. The panel members discussed how serious the allegations were and how serious a decision it was that they had to make. They decided that the claimant was guilty of gross misconduct on the basis of the abusive and derogatory comments made to Mr Paisley and the attempt to induce Mr McMullan to sign company registration forms. They found that the claimant used physical and verbal abuse against Mr Paisley and that Mr McMullan was put under undue pressure. The panel members went through the disciplinary sheet to see what category the behaviour came under and they both thought that the only possible category was gross misconduct and decided that the appropriate sanction was dismissal. They were also aware that the claimant had no previous disciplinary record. They were satisfied that the claimant was guilty of gross misconduct and considered that the only option was dismissal. As a result it was determined that the claimant should be summarily dismissed without notice. Ms Jamison was pressed as to the reasons for dismissing the claimant and she maintained that the main reason for dismissal was the treatment of Mr Paisley. She denied that they took account of the other groups pulling out of the Laganview Enterprise Centre but did state that it was not a good work environment because people saw what had happened and that Mr Paisley and Mr McMullan were not working there anymore. In her view it needed pulled back together. It was also suggested to Mrs Jamison that they did not consider a final written warning. Mrs Jamison’s response was that they considered everything and consulted their solicitor. According to Ms Jamison once they found that the claimant’s behaviour amounted to gross misconduct they felt obliged to dismiss the claimant. In her opinion a final written warning was not appropriate because what happened went too far and it was not a good work environment. It was put to Mr Dean that his mind was made up and that he had not considered whether there were extenuating circumstances that might explain the claimant's conduct. Mr Dean answered that he only wanted to dismiss the claimant if it was fair and that he did not want to dismiss her.

36. Mr Dean wrote to the claimant on 9 September 2009, although the letter was misdated, and advised her of the outcome of the disciplinary hearing. The letter read as follows:

“I am writing to advise you that a disciplinary hearing took place on Wednesday 9^thSeptember 2009 to consider the allegations of misconduct against you which were set out in my letter to you of 28^th August 2009. As you failed to attend the hearing, and as you failed to make any contact following my letter of 4^thSeptember 2009, seeking to re-arrange the hearing, it proceeded in your absence.

I can confirm that the decision taken at the disciplinary hearing held on 9^thSeptember 2009 is that you be summarily dismissed from your employment without notice or payment in lieu of notice effective from 9th September 2009.

The reason for your dismissal is that you were found guilty of gross misconduct in relation to the manner in which you conducted yourself at your workplace on 4th August 2009 specifically in relation to your conduct towards Dennis Paisley.

You have the right of appeal against this decision. Any appeal against this decision should be set out in writing stating briefly the grounds of appeal and sent to me within 5 days of you receiving this notice of dismissal. You have the right to be accompanied at any appeal by a colleague or trade union representative.”

37. The letter of dismissal was hand delivered to the claimant’s house by Mrs Jamison’s husband, Mr David Jamison, who also worked as a taxi driver for Mr Dean. Mr Jamison recalled Mr Dean asking him to deliver two letters to Mr McStea's house in September 2009. Mr Dean gave him the claimant's address although he was well aware where they lived as he had picked Mr McStea up from the house a few times. He knew that it was the right house because there was a big blue box like a skip sitting outside it. He could not recall the house number but the house was on the right of the terrace. There was a mail box on the front of the house. He knocked the door and when there was no answer he put the envelopes in the mail box. It was the only time that Mr Dean had asked him to deliver correspondence to this address. The claimant in fact lived on the right hand side of a semi detached property and Mr Jamison was clearly mistaken in believing that it was a terrace. Despite this flaw overall we were impressed by Mr Jamison’s evidence and we do not consider that this mistake undermines his evidence.

38. There was no response to the letter of dismissal by the claimant and no appeal. According to the claim form and her evidence to the tribunal, the claimant did not receive Mr Dean’s letter of 9 September 2009 and only learned of her dismissal for gross misconduct in mid September 2009 from another member of staff, Ms Spence.

39. Notwithstanding this knowledge the claimant sent a letter of resignation to the directors on 24 September 2009 citing numerous matters dating back to the first day of her employment including allegations that she was threatened. The meeting on 4 August 2009 featured prominently in the letter and was referred to in terms of being the last straw that left her with no option but to resign from her employment. We found it surprising that the claimant chose to write a letter of this nature at a time when she knew that she had been dismissed either by receipt of Mr Dean’s letter of 9 September 2009 or having been told by Ms Spence in mid September. The claimant’s explanation was that she had received legal advice to the effect that it was not clear that she had in fact been dismissed and that she should therefore write to the respondent and terminate her employment. This is of course predicated on the proposition that the claimant did not receive the letter of dismissal. The respondent claimed that it did not receive either the resignation letter or her subsequent grievance letter. It was put to the claimant that she did not in fact send either letter. While we find this aspect of this case puzzling nothing turns on it as the claimant had already been dismissed. It is however material to note that no complaint is made about any failure to respond to the grievance letter.

40. The claimant visited her General Practitioner again on 16 September 2009. On this occasion she was seen by Dr Hutchinson who gave her a further two week sick line. Dr Ryan saw her again on 11 January 2010. There was no record of the claimant telling Dr Ryan on either visit that she was facing disciplinary proceedings.

41. The claimant applied for a new job with the Anti-Poverty Network on or about

29 August 2009. On 15 September 2009 the claimant learned that her job application had been successful. The remuneration was similar to her post with the respondent.

The Law

Substantive Unfairness

42. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

“130. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(3) Where the employer has fulfilled the requirements of paragraph (1), 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 in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

43. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:

“[48]…The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[50] In Iceland Frozen Foods 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] is as follows:

(1) the starting point should always be the words of section 57(3) themselves;

(2) in applying the section an 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 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.’

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he 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 necessarily, 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 than 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’.”

This passage was cited with approval by the Court of Appeal in its recent decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

Procedural fairness

44. In terms of procedure, if an employer wishes to dismiss an employee it must go through the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. A dismissal may be unfair even if the statutory procedure is fully complied with by the employer if, for example, the employer has failed to follow its own disciplinary procedure.

45. In the present case the standard procedure applies which is as follows:-

“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.

Step 3: appeal

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

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

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

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.”

46. The consequences of failing to adhere to the relevant statutory procedure is set out in Article 130A of the 1996 Order which provides as follows:-

130A. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

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

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.

47. In addition, Article 17 of the Employment (Northern Ireland) Order 2003 makes provision for increasing awards for non compliance with the statutory procedures by employers as follows:-

17. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.

(2) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(i) to comply with a requirement of the procedure, or

(ii) to exercise a right of appeal under it,

it shall, subject to paragraph (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.

(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

(5) Where an award falls to be adjusted under this Article and under Article 27, the adjustment under this Article shall be made before the adjustment under that Article.

48. If the failure to follow the statutory dismissal procedure is because the employer is at fault the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%. If the claimant is at fault the tribunal must similarly reduce the compensatory award by 10% and may reduce it by up to 50%. In both cases the tribunal is not obliged to reduce or increase the award if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable.

49. Article 154(1A) provides as follows:-

Where –

(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation falls to be made under Article 146(4), and

(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,

the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

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

50. Article 157 of the 1996 Order makes provision in relation to compensation as follows:-

157. - (1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

Submissions

51. We are grateful to counsel for their detailed written and oral submissions. The written submissions are appended to this decision. We do not propose to attempt to summarise them here but have taken them fully into account in arriving at our conclusions.

Conclusions

52. Our findings on the agreed issues are as follows:

(1) Whether the respondent has established that the reason for dismissal was gross misconduct which arose from the claimant's conduct on 4 August 2009.

The main thrust of the claimant's case was that the whole disciplinary process was a sham and that what was really happening was that there was a power struggle within the organisation with the disciplinary proceedings being used as a pretext or means of getting rid of the claimant. The tribunal heard evidence from the claimant about this aspect of the case and was directed to a number of documents that purported to support this thesis. We did not find any of this evidence either illuminating or persuasive. In our view this evidence did no more than establish that there were different viewpoints held by the claimant and others within the organisation as to what direction it should go. We are not persuaded on the basis of this evidence that the disciplinary process was sham. Nor do we regard the contents of the letter of 4 August 2009 as being of a nature that would have inevitably caused the claimant to react as she did. Mr Paisley’s evidence that he was shocked by the claimant’s reaction was in our view genuine and the claimant accepted that she behaved very badly. We are therefore satisfied that the claimant was dismissed because of her behaviour on 4 August 2009 and not for any extraneous reason.

Mr Potter also drew attention to inconsistencies in the reasons given for dismissal. In particular, he submitted that the letter of dismissal focused exclusively on the claimant’s behaviour towards Mr Paisley and did not refer to the allegations that the claimant wrongly accused Mr Paisley of being responsible for Mr McMullan losing his job or inducing Mr McMullan to sign directorship forms as set out in the letter of 28 August 2009. We consider that the letter of dismissal is capable of being read as embracing everything that occurred during the course of the meeting with Mr Paisley on 4 August 2009 if not the incident regarding the directorship forms. However, having considered all of the evidence carefully we are satisfied that the panel’s decision was based on all three matters. The inadequacy identified in the dismissal letter does not serve to materially undermine the basis of the dismissal.

We are therefore satisfied that the respondent has established that the reason for dismissal was gross misconduct which arose from the claimant's conduct on 4 August 2009.

(2) Whether there was a reasonable investigation.

As outlined in the authorities cited above, there are three essential elements in a reasonable misconduct dismissal. There must be genuine belief in the guilt of the employee, reasonable grounds to sustain that belief and the employer must conduct a reasonable investigation before reaching that view.

We are satisfied that the respondent’s decision to dismiss the claimant for gross misconduct was reached following a reasonable Investigation. The investigation was undertaken by Miss Black who obtained detailed statements from a number of relevant witnesses. The only possible criticism of Miss Black’s investigation was the failure to interview either the claimant or her husband or to conduct an investigatory meeting. It is clear that there were serious allegations about both and it would have been preferable for them to have been given an opportunity to give their version of events but we can understand a reluctance to engage with them directly. However, the failure to interview the claimant and her husband does not render an otherwise thorough investigation less than reasonable. The process adopted accords entirely with the three step disciplinary procedure and there is nothing in the Labour Relations Agency guidance or elsewhere to suggest that an investigatory meeting with the person concerned is essential.

Furthermore, it was envisaged that the claimant would have the opportunity to address the matter at the disciplinary hearing. In the event, the claimant did not avail of this opportunity due to her failure to attend the disciplinary hearing which was originally convened on 4 September 2009 and was reconvened on 9 September 2009 due to her non attendance. The claimant did not inform Mr Dean that she was unable to attend the disciplinary hearing on 4 September 2009 due to ill-health and she also failed to respond to Mr Dean’s letter of the same date inviting her to attend the rescheduled hearing. We are entirely satisfied that the claimant received the letter inviting her to the reconvened hearing on 9 September 2009.

When the claimant failed to attend the reconvened disciplinary hearing the panel decided to proceed in her absence and carefully considered all of the material available to them before concluding that the claimant had committed the disciplinary offence alleged and should be dismissed for gross misconduct. Taking all of the evidence into account we are satisfied that the respondent genuinely believed in the guilt of the claimant and had reasonable grounds for its belief in the claimant’s guilt following a reasonable investigation.

(3) Whether the decision to dismiss the claimant for gross misconduct was within the band of reasonable responses to the employee's conduct.

We are satisfied that the decision to dismiss the claimant on the basis of her behaviour as admitted to the tribunal falls within the band of reasonable responses open to the respondent. We have also considered carefully whether the disciplinary panel shut itself off from outcomes other than summary dismissal for gross misconduct or took extraneous matters into account. We are satisfied on the basis of the evidence of Mr Dean and Mrs Jamison that they considered the matter carefully and that the decision to dismiss the claimant for gross misconduct was not based on evidence about groups pulling out of the organisation. Nor do we consider that the sanction of dismissal was disproportionate but rather we are satisfied that it was well within the range of reasonable responses open to the panel on the basis of the material before them.

(4) If the reason for dismissal was the claimant's conduct on 4 August 2009, whether the respondent went ahead with the disciplinary hearing with knowledge that the claimant was unfit due to ill-health.

We are satisfied that the disciplinary panel was genuinely not aware that the claimant was unfit due to ill-health. That is not the end of the matter as the criticism was made that the respondent did not have an adequate system in place to ensure that the panel was informed of the claimant’s ill-health. It is striking that the respondent was unable to produce either the original or the copy of the sick line. This might suggest that neither were in fact delivered but on balance we are satisfied that both were delivered by the claimant to the Laganview Enterprise Centre on 2 September 2009. While we are satisfied that the claimant delivered the sick line to Ms Spence and left a copy on Mr Paisley’s desk we consider that the claimant failed to take sufficient steps to draw it to the attention of the disciplinary panel despite having been expressly asked by Mr Dean to contact him directly if there was any matter that she wished to raise with him. The claimant was well aware that Mr Paisley was no longer working at the Laganview Enterprise Centre and that Ms Spence would do no more than place the sick line on the payroll file. We take into account Mr Dean’s acceptance that the Laganview Enterprise Centre was the proper place for the claimant to deliver a sick line and we can see that in the normal course of events this would be entirely sensible but this concession cannot be viewed in isolation from the heightened need on the part of the claimant to ensure that the disciplinary panel was alerted to her inability to attend. Given the proximity of the disciplinary hearing which was due to take place on 4 September 2009, we find it difficult to understand why the claimant did not attempt to communicate directly with the panel by delivering a letter saying that she would be unable to attend on the set date due to ill health and asking the panel to re-schedule the hearing. We do not consider that any failings in the respondent’s internal system for dealing with sick lines sounds on this issue. In fairness to the claimant we should point out that she now accepts that the best course would have been to deliver the sick line to the respondent’s office at 79 Glebe Walk.

It was also suggested that the panel had improperly gone ahead with the disciplinary hearing in full knowledge of the sick line because they wanted to get rid of the claimant. We do not accept this contention. We believe that the panel having given the claimant two opportunities to attend the disciplinary hearing went ahead with it on the second occasion and was unaware of the existence of a sick line. Nor do we accept the suggestion that the panel ought to have attempted to make contact with the claimant by telephone when she failed to attend the disciplinary hearing. While it might have been sensible to do so, it is not something that it was obliged to do and we can understand why it did not in the circumstances particularly given the communication difficulties with the claimant.

(5) Whether the allegation of ill-health was genuine.

We are satisfied on the basis of the claimant’s evidence and that of Dr Ryan that her ill-health was genuine. It was described as work related stress but it could also have been a reaction to being faced with disciplinary proceedings. We also note that the claimant had been receiving treatment from a psychotherapist since February 2009.

(6) Did the respondent comply with the statutory dismissal procedures pursuant to the Employment (Northern Ireland) Order 2003?

The claimant accepted that the respondent complied with paragraph 1(1) of the three step procedure by sending the claimant the letter of 28 August 2009 but contended that the respondent failed to comply with the paragraph 1(2) requirement to invite the claimant to the meeting on 9 September 2009. This was based primarily on the alleged failure to make contact with the claimant about the reconvened meeting on 9 September 2009. The claimant alleged that the respondent did not send the claimant the letter of 4 September 2009 and ought to have attempted to contact the claimant by telephone when she failed to attend the hearing on 9 September 2009. A further issue was whether the respondent ignored the claimant’s ill-health in proceeding with the hearing in her absence. Mr Potter attempted to undermine Mr Fyffe’s evidence that he delivered the letter on the basis of his evidence that the letter was addressed to the claimant’s maiden name of Fiona McCausland rather than her married name of Fiona McStea. We are satisfied however that the letter advising the claimant of the reconvened hearing on 9 September 2010 was in fact delivered to her home address on 4 September 2009 by Mr Fyffe whom we found to be an impressive witness irrespective of the name on the envelope. We also accept Mr Dean’s evidence that he also posted the letter to the claimant by ordinary mail. We consider that the claimant was very selective in what mail she admitted receiving. We are therefore satisfied that the respondent complied with its obligations under Steps 1 and 2 of the statutory dismissal procedures.

In view of this conclusion we simply cannot understand why the claimant failed to make contact with the respondent. Even if she thought that the delivery of the sick line and a copy to Laganview Enterprise Centre was a sufficient means of informing Mr Dean of her inability to attend the disciplinary hearing on 4 September 2004, she could have been under no such illusions when she received notification of the reconvened hearing and it was incumbent on her to make contact with Mr Dean and inform him directly of her difficulty.

(7) Whether the claimant was notified of her dismissal and given a right of appeal.

We are also entirely satisfied that the claimant was both notified of her dismissal and given a right of appeal by letter of 8 September 2009 which was delivered by hand by Mr Jamison whose evidence we accept. Although Mr Jamison’s evidence that the claimant lived on the right hand side of a terrace house as opposed to a semi detached house was incorrect, he was an impressive witness overall and this mistake does not impact on his credibility. Nor do we accept the suggestion that his evidence was influenced by the fact that he was married to Mrs Jamison and employed by Mr Dean. The claimant maintained that ordinary mail could be retrieved from her broken mail box and that there was only a problem with recorded delivery slips. Therefore either the letter was misappropriated or the claimant did receive it and is telling lies. In our view the claimant’s denials that certain mail including this letter did not reach her lacks credibility and we are firmly of the view that this letter was delivered to her home address.

(8) If the statutory dismissal and disciplinary procedure was not followed and/or if the dismissal was otherwise procedurally unfair whether the claimant would have been fairly dismissed if a proper procedure had been followed.

As we are not persuaded that there was any failure on the respondent’s part in terms of the statutory dismissal procedure or that the dismissal was otherwise procedurally unfair, the submissions in relation to Article 130A (2) therefore fall away and need not be considered further. Had it been necessary to address this issue, we would have been disposed to accept Mr Potter’s submission, based primarily on Software 2000 ltd v Andrews [2007] IRLR 568, that the respondent had not adduced the necessary evidence on this aspect of the case.

(9) If the dismissal was unfair, whether the claimant's conduct contributed to her dismissal.

Again as we have not found that the dismissal was unfair it is not strictly necessary to address this question but we are of the clear opinion that a substantial deduction would have been appropriate in this case on the basis of the claimant’s conduct both as admitted and found by us.

(10) If the claimant was unfairly dismissed, what is the appropriate level of compensation having regard to the claimant's alleged conduct following dismissal?

Again we strictly do not need to address this question. However, it is clear from the claimant’s own evidence that she was actively seeking alternative employment since early 2009. The claimant applied for a post with the Anti Poverty Network on or about 29 August 2009, was interviewed for that post on 10 September 2009 and was offered and accepted this post on 15 September 2009. As there was no material difference in remuneration there was ultimately no claim for future loss.

53. In view of our conclusions as set out above the claim must be dismissed.

Chairman:

Date and place of hearing: 26–27 April 2010, 29 April 2010 and 19 May 2010 at
Belfast

Date decision recorded in register and issued to parties:

BEFORE THE INDUSTRIAL TRIBUNAL

Fiona McCausland v The Old Warren Partnership

Submisson on behalf of the Claimant

1. The issues to be addressed in the hearing were set out at Part A Pages 33-34 of the bundle.

2. This submission is premised on the following propositions:

(a) the Claimant was dismissed on or about 9 September 2009;

(b) the Claimant made inappropriate remarks on the 4^th August 2009 (whilst the degree of the impropriety is disputed the fact that there was impropriety is not);
(c) on or about 28/29 August 2009 the Claimant received notice of a disciplinary hearing arranged for 4 September 2009;

(d) the Claimant did not attend two Disciplinary Hearings arranged for 4th September 2009 and 9th September 2009 respectively and was dismissed having failed to appear at the second, i.e. on the 9th September.

3. The submission specifically addresses the issues identified above and in particular those points which appear most pertinent to the Tribunal’s determinations following the three day hearing. Legal and evidential submissions are set out below. The Tribunal has afforded an opportunity for oral submissions on 19th May 2010 at 4.00pm.

4. The Claimant side still want to see a freshly printed version of the email at C18.

LEGAL AND EVIDENTIAL SUBMISSIONS

5. Did the Respondent comply with the statutory dismissal procedures pursuant to the Employment (NI) Order 2003?

a) The statutory dismissal procedures are contained at Schedule 1 of the Employment (NI) Order 2003.

b) The Respondent complied with stage one paragraph 1(1). In particular the Respondent sent and the Claimant accepted that she received the letter dated 28 August 2009.

c) In our submission whilst the Respondent complied with the requirement to send a statement it failed to comply with the requirement at paragraph 1(2) to ‘invite’ the Claimant to attend the meeting scheduled for the 9 September 2009.

d) The standard rule for service by post pursuant to Section 7 of the Interpretation Act 1978 regards service as effected by posting a letter using Royal Mail.

e) On the other hand a claim is only presented to the Tribunal if it is actually received by the tribunal.(See Harvey on Industrial Relations and Employment Law; T.296 — 299)

f) It seems that an employer can hand deliver a step one statement and invitation to an employee. (Page 3 IDS Statutory Disciplinary and Grievance Procedures.) The burden of proof lies on the employer.

g) “An employer who sends a Step 1 statement to an employee by post perhaps because the employee is absent on sick leave should in the absence of a response from the employee attempt to make contact for a second time to check that the employee has received the statement”. (Page 3 IDS Statutory Disciplinary and Grievance Procedures.)

h) It is our submission that the employer failed to make contact with the Claimant as regards the holding of the rescheduled meeting:

1. The Claimant did not receive the letter of 4th September
2009 inviting her to the hearing.

2. Whilst there was evidence of the letter dated 14 August having been posted, it is plain that the letters of 4th and 9th September were not posted. The Claimant did not receive either of the September letters. The 14 August letter was returned ‘not called for’.

3. The Claimant received the letter of 28 August by hand delivery so there was no difficulty receiving a letter actually delivered.

4. Whilst the Claimant had difficulty with recorded delivery slips and flyers falling into the base of the postbox and out of adult reach, she had no difficulty obtaining delivery of (and reaching) standard size letters.

5. It is the Claimant’s case that the letter of 4 September was not sent or delivered.

6. A taxi driver Neil Fyffe with Premier Cabs a firm owned/managed by Mr Dean gave evidence that a letter he was delivering stated Fiona McCausland. Given the overt Respondent practice since July 2009 of referring to the Claimant as Fiona McStea (her married name) rather than her professional (maiden) name (McCausland), the credibility of Mr Fyffe’s evidence is questionable. It seems extremely unlikely that any letter on 4 September 2009 was addressed to Fiona McCausland.(See page C29 in relation to the first August letter.)

7. Mr Jamieson was the husband of Mrs Jamieson (panel member) and the employee of Mr Dean (panel member) and therefore could conceivably be making a convenient statement to assist both parties.

8. Neither driver could say when he delivered the letter with any exactitude — Mr Fyffe’s recollection of the date of delivery was so vague it spanned some three or four months.

9. Both drivers were well acquainted with the Claimant’s neighbourhood and address irrespective of any delivery of a letter to the Claimant.

10. Both taxi drivers gave evidence that she lived in an end Terrace when she lives in a semi.

i) On a related issue, if Mr Dean hand delivered the suspension letter of the 14 August on the 19 August as he indicated, it is likely that the Claimant would have specifically referenced and addressed the matter in correspondence or at the very least in her consultations with the GP or the Therapist who she saw the next day. This casts further doubt oh much of the hand-delivery evidence;

j) In the context of the place of contact and the Respondent’s credibility generally, the letter of 22 July 2009 is different as regards the last sentence at B14 and C75. It is submitted that this letter (C75) has been falsified by the Respondent — casting further doubt on the credibility of their case.

k) It is submitted that the Respondent has failed to comply with stage one paragraph 1(2) insofar as the Respondent failed to notify the Claimant of the date and time of the rescheduled meeting held on the 9th September 2009.

l) The Claimant complied with stage two paragraph 2(3) given that she lodged a sick-line with her employer and was not informed of the re-scheduled meeting.

m) Mr Paisley stated the ‘dogs in the street’ knew he was working in Glebe Walk — but refused to accept that the Administrator of the Partnership (Jennifer Spence) who had received the sick-line knew this fact. This appears entirely incredible.

n) Mr Paisley accepted that he was aware of Mr McMullen’s sick- line which had been lodged in Laganview. Again it seems unlikely that he would have knowledge of Mr McMullen’s sick- line but not the Claimant’s.

6. Did the Respondent otherwise operate a fair procedure?
(a) To fairly dismiss an employee for misconduct or gross misconduct the employer must entertain a “reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time”. British Home Stores Ltd v Burchell; Harvey on Industrial Relations and Employment Law; D 1453.05)

(b) There are a number of elements in a reasonable misconduct dismissal:
              1. genuine belief in the guilt;
              2. reasonable grounds to sustain that belief; and,
              3. the employer conducting a reasonable investigation prior to reaching that                     view.
(c) Ordinarily to be deemed reasonable the investigation should comprise the following   components:

1. There should be a proportionate investigation into the alleged misconduct; (Harvey on Industrial Relations and Employment Law DI 1492)
2. The employee should be notified of the nature of any disciplinary charge and procedure; (Harvey on Industrial Relations and Employment Law DI 1501)
3. A disciplinary hearing should be convened at which the employee is given the right to defend him or herself; (Harvey on Industrial Relations and Employment Law DI paragraph 1503 notably:
“The importance of the ability of someone to make representations on allegations made against them is recognised in virtually every system of law. The right to be heard is one of the basic tenets of natural justice. Failure to permit this will almost inevitably render the dismissal unfair”.
(See also paragraph 38 of the Labour Relations Agency Disciplinary and Grievance Procedure Code.)
4. According the employee the right to appeal. (See Harvey
on Industrial Relations and Employment Law Dl 998
&1485 and sequel; Clark v Civil Aviation Authority [1991]
IRLR 412)

(d) The overriding point in relation to procedure is that the Claimant was dismissed without first having provided a response to the charges and evidence underpinning same. Any other points appear ancillary.
(e) Not only did the employer dismiss the Claimant in
circumstances where the Claimant had not appeared at the hearing, no written submission had been received and the Respondent had not interviewed the Claimant as part of the investigation. Consequently at no stage was the Respondent able to consider or weigh the evidence from those making statements and allegations prejudicial to the Claimant against any evidence or explanation provided by the Claimant.
(f) It is notable that the Courts encourage Tribunals to consider the procedural issues together with the reason for the dismissal
- the two impact upon one another. The more serious the misconduct and the more trivial the procedural defect the greater the likelihood that such a procedural defect will not impede a finding of unfair dismissal. In this case the

fundamental nature of the alleged procedural defect is such as to render this at best virtually inapplicable.( Harvey on Industrial Relations and Employment Law DI 1011; Taylor v OCS Group Ltd [2006] ICR 1602)

g) The decision to dismiss the Claimant without having ‘heard’ her can only be regarded as fair where there is compelling justification for taking such a step e.g.
if an employee is persistently unable or unwilling to attend a
disciplinary meeting without good cause then the employer
should make a decision on the evidence available.(Ugoala v
Godfrey Davis (Care Hire) Ltd - Harvey on Industrial Relations
and Employment Law DI 1509)

h) In this case the Respondent did not act reasonably in dismissing given this procedural defect existing on the 9th
September:
1. The Claimant had obtained and lodged a sickline with the office and left a copy on her Line Manager Denis Paisley’s desk and gave a copy to the Administrator;
2. The second hearing was arranged very quickly after the first and the Respondent failed to take sufficient or any steps to properly ascertain why she had not attended the first hearing including contacting the office and/or the Administrator;
3. It is hard to believe that Mr Paisley was not being furnished with his paperwork / post on a reasonably regular basis. If Mr Paisley did have the sick-line there can be justification for his not communicating same to Mr Dean;
4. The Claimant denies receiving notification of the hearing;
5. There was no evidence that the Respondent tried to telephone the Claimant or otherwise contact her. Given that all parties were living and working in a relatively small community, surely it would not have taken the Respondent much effort to establish contact.

7. Was it reasonable for the Respondent to proceed with the hearing on the 9 September 2009?

(a) The Respondent proceeded with a disciplinary hearing when it knew or ought to have known that the Claimant was on sick leave. The Claimant left a sick-note in the office with the Administrator and also a copy on her Line Manager Mr Paisley’s desk. Mr Paisley was getting mail delivered by Moira Johns and possibly others.
(b) Notwithstanding the fact that this was a very small organisation and the Claimant had properly left her sick certificate with the office and Administrator in accordance with normal procedure,

the Respondent claimed that it had no knowledge that she was sick such that she could not attend the hearing.
(c) It is submitted that the Disciplinary Panel would have known about the sick-line for reasons set out above.
(d) In any event the Disciplinary Panel ought to have known about the sick-line. The sick-line had been lodged in the office in accordance with procedure. The Respondent failed to make proper inquiries and check with the Administrator as to the possibility that a sick-line or some other relevant
communication had been lodged with the office prior to dismissal. This was unreasonable. Mr Dean indicated he did not have the office phone number and he could not gain access to the building — a building with offices and shops and open 9-5 Monday to Friday. Both propositions are incredulous.
(e) The Claimant received the letter of 28 August 2009 and possibly the Claimant would have been well advised to have written to Mr Dean at Glebe Walk indicating she was on sick leave and unable to attend any hearing at that time. Notwithstanding the fact that this was not done, a duty lay on the employer to ensure that it was acting fairly in dismissing her in all the circumstances. And the circumstances include the following:

1. The registered and day to day office of the Respondent was in Laganview;

2. Glebe Walk was a house used for meetings — not an office;

3. The normal procedure for lodgement of sick-lines involved notifying the Office at Laganview and the form being placed in the payroll file;

4. The Claimant placed the sicknote on Mr Paisley’s desk as well as giving a copy to Jennifer Spence the Administrator;

5. It is likely that Mr Paisley was getting his mail; and if Mr Paisley about the sick line knew it is likely Mr Dean knew;

6. The Directors / Disciplinary Panel ought to have checked with the. Office / Administrator to ascertain if any relevant documentation had been lodged prior to taking such a drastic step as dismissing the Claimant;

7. The respondent acted much too hastily in dismissing her on the 9th September 2010 in the circumstances.

(f) The Respondent did not explain why it decided not to post the letters of 4 and 9 September — and it is submitted that the postal delivery evidence has dubious credibility for the reasons set out above and below.

8. Why was the Claimant dismissed?

The Respondent’s case and evidence

(a) The Respondent’s case is that the Claimant was dismissed for gross misconduct. The dismissal decision was made by two people, Mr Dean and Mrs Jamieson.

(b) In the letter setting out the charges prior to the hearing (the stage one letter) the charge is based on two matters:

a. the allegation in relation to her conduct on the 4th August
2009;

b. the allegation that she wrongly accused Mr Paisley of being responsible for Mr McMullen losing his job; and,

c. the allegation in relation to inducing Jonathan McMullen to sign forms, the Claimant’s alleged conduct in relation
to offensive and abusive conduct and improper conduct in
relation to Director forms.(See page C 23)

(c) The dismissal letter references only ground a above.
(d) In his evidence Mr Dean stated the Claimant was dismissed on grounds a and c;
(e) In her evidence Mrs Jamieson explained that the Claimant (and her husband) had to be dismissed because:
“We didn’t see how they could remain in [the] building.. bad atmosphere after what happened. Other groups pulled out. Dismissal [was the] only way.” (Additional words added in brackets — Mr Upson’s note.)
(1) Mrs Jamieson was unable to explain why she had given evidence that the matter of groups pulling out of the Old Warren Partnership formed a basis for the dismissal.
(g) No evidence was taken during the disciplinary process in relation to the matter of groups pulling out - it is
incontrovertible that there was no documentary or other evidence of same before the disciplinary panel.
(h) Consequently the Respondent has dismissed the Claimant for a reason which was not raised in the letter of the 28 August, was not addressed in the investigation, was not addressed in the material before the panel and was not referenced in the letter of dismissal.
(i) A dismissal will not be fair where a reason relied upon or an important ground constituting a reason is neither established in fact nor believed to be true on reasonable grounds. Harvey on Industrial Relations arid Employment Law DI 779;872; Smith v City of Glasgow District Council [1987] IRLR 326)
(j) Moreover the identified inconsistencies in relation to the basis for the dismissal similarly undermine the fairness of the dismissal - the Respondent has provided three different post dismissal explanations as to the reason for the dismissal

a. the letter
b. Mr Dean’s evidence referencing two of the three points set out in the letter of 28 August 2009;
c. Mrs Jamieson’s evidence referencing the alleged abuse on the 4 August and the matter of groups pulling out.

The Claimant’s position

(k) The Claimant’s case is that her dismissal was engineered by a number of people within and without the Partnership including Philip Dean and Denis Paisley; that there was a determination to run down Old Warren Partnership and reduce the Claimant’s influence on community projects; and, there was a concerted effort to position other people to gain control of funding that was potentially coming into community projects in certain communities in Northern Ireland including Old Warren.

(1) The relationship between the Directors including Dean and Jamieson and the Claimant was far froth a normal employer employee relationship - this is best evidenced by the purported suspension which was not effected. Had Mr Dean been confident of the legitimacy of the decision and his role as manager of the Claimant, he would have implemented the suspension. The fact that he did not implement the suspension is further evidence of the fact that the Claimant was the de facto coordinator and Mr Dean and others were seeking to displace her.

(m) Whilst apparently seeing no need for an ‘umbrella’
organisation such as Old Warren Partnership, Mr Paisley is a
Director of a newly created organisation Community
Development Education and Youth Network Ltd constituted in
2010 apparently established to perform a similar role to the role
Old Warren Partnership was performing.

(n) The Respondent utilised the events on the 4 August 2009 and the Claimant’s reaction as a basis or pretext to dismiss her. But the real reason for her dismissal was as set out above.

(o) Whilst the Claimant’s reaction to the letter on the 4 August 2009 was in part inappropriate, when viewed in the context of what was happening at the time it was understandable.

(p) The Disciplinary Procedure recognised the need for an informal and contextual approach. Apparently the organisation had always addressed misconduct issues informally given the nature of the work. The departure from this approach was motivated by extraneous factors.

(q) In any event the Claimant’s reaction was not sufficiently serious severe to warrant dismissal given her service, character and the context.

(r) No employer acting reasonably and fairly would have dismissed the Claimant in the circumstances.

(s) The evidence provided by Mr Paisley and Mr McMullen was not accurate and at no point was this evidence tested as against the Claimant’s recollection prior to the dismissal decision.

(t) In particular Mr Paisley alleged inter alia that the Claimant had ripped up a letter, shoved it down his jacket and zipped up his jacket. A copy of the letter was in the bundle at B 14 and evidently had not been ripped.

(u) The background provides the real reason for the dismissal:

i. The Claimant points to documentation and gave evidence of conversations (most notably with Mr Paisley in November 2008 and June 2009) evidencing a determination on the part of people outside the organisation to dismantle / discontinue Old Warren Partnership;

ii. Mr Paisley was markedly unable to explain strong and adverse comments pertaining to the Claimant which he made in Board meetings in February and April 2009;

iii. Mr Dean admitted that he opposed statutory agencies coming onto the Board. It is submitted that without a specific explanation, such opposition raises an obvious question over the prep4redness of Mr Dean and others taking the same view to be subject to scrutiny in their management of the organisation including its funds;

iv. Mr Paisley accepted that he had initially agreed to lodge Director certificates (for two Polish men on his evidence but for a larger number of proposed Directors on the Claimant’s evidence) and accepted that he subsequently lied about having lodged the certificates when the Claimant asked about them;

v. There was also opposition to diversity on the part of Mr Dean and others in 2009 (see page C35)

vi. The meeting that prompted the letter of 22 July 2009 was plainly about issues pertaining to control and new Directors;

vii. Mrs Jamieson in evidence indicated that organisations leaving (the partnership) was one of the reasons for the dismissal.

(v) On the Claimant’s behalf we highlight Sharon Jamieson’s evidence that the Claimant was dismissed in part because of the organisations leaving as it corroborates the Claimant’s argument that (1) the incident on the 4th August was not the real or primary or principal reason for her dismissal, and (2) the real reason for her dismissal lies in the determination on the part of Mr Dean, Mr Paisley and/or others to run down the Partnership and remove the Claimant.

9. Was the Claimant fairly dismissed?
(a) The Respondent appears to be contending that it is open for the
Tribunal to hold that the Claimant was fairly dismissed.
(b) The basis for this contention is as follows:

i. The Claimant was guilty of gross misconduct;
ii. The Respondent complied with the statutory dismissal procedures;
iii. The Respondent fairly dismissed the Claimant pursuant to the prevailing legal requirements such as set out above in paragraph 5.
iv. Although the Claimant was not ‘heard’ prior to the decision, she acted unreasonably in failing to attend the hearing or inform Mr Dean that she was unable to attend by reason of sickness.
v. Dismissal was a proportionate sanction;
(c) It is submitted that this line of argument is flawed for the reasons set out below.

10. Was the Claimant unfairly dismissed for substantive reasons?
(a) Firstly the employer did not have a genuine belief in the Claimant having committed gross misconduct and/or gross misconduct justifying dismissal.
(b) Secondly the employer is inconsistent in relation to the reason or reasons for the dismissal. The Respondent has provided three different post dismissal explanations as to the reason for the dismissal

a. the letter;

b. Mr Dean’s evidence referencing two of the three points set out in the letter of 28 August 2009;

c. Mrs Jamieson’s evidence referencing the alleged abuse on the 4 August and the matter of groups pulling out.

(c) The Respondent knew the context and the Claimant’s reaction when viewed in that light was not deserving either of categorisation as gross misconduct and/or of drastic sanction. Rather the real reason for the dismissal was simply to get rid of the Claimant and the incident on the 4th August was used as a pretext.

(d) A dismissal will not be fair where a reason relied upon or an important ground constituting a reason is neither established in fact nor believed to be true on reasonable grounds. Harvey on Industrial Relations and Employment Law DI 779;872; Smith v City of Glasgow District Council [1987] IRLR 326)

(e) In this case there is a query over the correct reason for the dismissal leaving a question hanging over the validity of the Respondent’s explanations.

(f) More specifically, no evidence was provided to the Disciplinary Panel on the ‘groups leaving the Partnership’ issue. Mrs Jamieson in evidence indicated that the behaviour on the 4th August and the organisations leaving the Partnership were the two reasons for the dismissal. This evidence indicates that the Respondent dismissed the Claimant for a reason that was not evidentially based. Such a dismissal is unlawful (Harvey on Industrial Relations and Employment Law DI 779;872; Smith v City of Glasgow District Council [1987] IRLR 326)

(g) Fourthly dismissal was a disproportionate sanction (Harvey on Industrial Relations and Employment Law DI 1534 and sequel) and the following points appear apposite:

i. Mrs Jamiesons evidence gave the impression that no other sanction was considered — that they simply categorised the offence as gross misconduct and dismissal was consequently the apposite sanction;

ii. There was no attempt to consider any issue other than whether she was guilty as charged. Specifically the context and the letter of 22 July 2009 was not considered. This evidences a sham;

iii. The evidence against her contained fabrications and misrepresentations — e.g. ripping up the letter and putting it in Mr Paisley’s shirt — when it was in the bundle untorn.

iv. The Claimant’s contribution, role, record, disciplinary record and years of service were
apparently not considered.

(h) Finally the employer failed to follow a fair procedure and therefore did not act reasonably in the process of dismissing the Claimant.

Was the Claimant unfairly dismissed by reason of a procedural failure only?
(a) If the Tribunal conclude that the dismissal was only unfair as regards a procedural failure, and in particular the failure to accord the Claimant fair process in inviting her to a hearing and/or proceeding with a hearing where to proceed was unreasonable and/or refusing to give her the right and

opportunity to appeal, Article 130A(2) of the Employment Rights (NI) Order 1996 becomes operable and applicable;

(b) An employer can avail of Article 130A(2) if it persuades the Tribunal that even if the Claimant had been afforded due process, which in this case involves being ‘heard;, it would have dismissed her anyway and that the dismissal would have been fair and reasonable.(See Harvey on Industrial Relations and Employment Law DI 1016; see generally Milton Keynes General NHS Trust v Southcote- Want [27 January 2010] Judge Serota see Appendix B below)

(c) To benefit from Article 130A(2) it seems the Respondent in this case must show that the Panel would have acted reasonably in dismissing the Claimant even if it had it been provided with the Claimant’s explanation and evidence and had properly considered same;(See Software 2000 Ltd v Andrews [20071 IRLR 568 paragraph 54— for Michael Rubenstein’s commentary see Appendix A below)

(d) Where the procedural failure is so fundamental as in this case it is more difficult for the Respondent to discharge this evidential burden.

(e) (e) If the Respondent satisfies the Tribunal that there would have been the possibility of a dismissal in those circumstances but falling short of 51%, it must find the dismissal unfair but reduce the award as appropriate.

(f) It is submitted that with the evidential burden lying on the Respondent as set out in the above authorities, the Respondent has failed to discharge the evidential burden in relation to this matter having failed to lead evidence from Mr Dean or Mrs Jamieson on the issue identified at (c) above.

(g) In particular, whilst it was always going to be difficult for the Respondent to discharge the evidential burden given its failure to take proper cognizance of the Claimant’s explanation prior to its witnesses giving evidence, the Respondent in this case has entirely failed to address the issue in its evidence.

(h) Had the Respondent sought full particulars of the explanation the Claimant would have given had she attended the hearing, in those circumstances Mr Dean and /or Mrs Jamieson could have given evidence on how that might or might not have affected their decision and why. However the Respondent did not take such a course in this case.

12.Has the Respondent persuaded the Tribunal that the Claimant would have been dismissed anyway even if there had been no such procedural failure pursuant to Article 130A(2) of the Employment Rights (NI) Order 1996?
(a) Failure to permit the Claimant to take part in the process or defend herself breaches such a fundamental legal right (fair hearing; natural justice) that such a failure is conceivably

salvageable in relatively few scenarios. It is submitted that this is not one of them;

(b) The Respondent has not actually addressed the evidential requirements in meeting this burden of proof — as discussed above - it has failed to establish that the panel would have acted reasonably in reaching the same conclusion had it received the Claimant’s explanation. Consequently it is inconceivable that the procedural flaw can be cured pursuant to Article 1 30A(2).

13. What other factors are relevant to the Article 130A(2) issue?

(a). It appears relevant to record the fact that the Claimant applied for a job with the Anti Poverty Network on or about the 29 August 2009 and was interviewed on the 10 September 2009.

(b). She found out about the fact of her dismissal orally from her husband on the .9 September 2009.

14. If the Claimant was unfairly dismissed, is there any contributory fault and if so how should it be assessed?
(a) In her reaction on 4 August 2009 the Claimant used inappropriate and offensive language;
(b) It is submitted that in all the circumstances this was simply a human reaction and that it would be unfair to construe this as anything more than minor misconduct;
(c.) It is submitted that the reaction whilst inappropriate was entirely understandable and there should be no reduction in compensation;
(d) However if a reduction in compensation is regarded as apposite it is submitted it should be relatively low.

For and on behalf of the Claimant
7 May 2010

SCHEDULE OF LOSS

Basic Award

Failure to comply with Statutory Dismissal Procedures

Basic Award - 4 weeks pay (£1400)

Otherwise Basic Award is One Year - £350

Compensatory Award

To date of hearing

EDT to May 2010

£1468 - £1438 = £30 per month = £240

From date of hearing to end of October 2010 (the date when her job is due to end)

£1468 - £1438 = £30 per month = £150

Future Loss

November 2010 for two years —£338 per week x 104 = £35152

Potential uplift for failure to adhere to the statutory procedures pursuant to the Employment (Northern Ireland) Order 2003

Loss of statutory rights

£350

APPENDIX A

Michael Rubenstein’s IRLR commentary on Software 2000 Ltd v Andrews.

General principles are set out by the EAT in Software 2000 Ltd v Andrews [2007] IRLR 568 for how a tribunal hearing an unfair dismissal claim should deal with a failure to follow a proper procedure. According to the EAT, the tribunal must “identify and consider any evidence which it can with some confidence deploy to predict what would have happened had there been no unfair dismissal.” Mr Justice Elias points out that the s.98A(2) exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel.

There are five possible outcomes.

1. The evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction, though the EAT warns that the mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

2. Secondly, the employer may show that if fair procedures had been complied with, the dismissal would have occurred when it did in any event. The dismissal will then be fair in accordance with s.98A(2).

3. Thirdly, the tribunal may decide there was a chance of dismissal but it was less than 50%, in which case compensation should be reduced.

4. Fourthly, the tribunal may decide that employment would have continued, but only for a limited period.

5. Finally, the tribunal may decide that employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

It follows that “there may be insufficient evidence, or it may be too unreliable, to enable a tribunal to say with any precision whether an employee would, on the balance of probabilities, have been dismissed, and yet sufficient evidence for the tribunal to conclude that on any view there must have been some realistic chance that he would have been. Some assessment must be made of that risk when calculating the compensation even though it will be a difficult and to some extent speculative exercise.”

APPENDIX B

EXTRACT FROM Milton Keynes General NHS Trust v Southcote-Want Employment Appeal Tribunal decision 27 January 2010.

Judge Serota QC

Paragraphs 86 to 93

My emphasis by underlining.

The law

86.

The principle upon which the Employment Tribunal must act in determining whether or not a dismissal is unfair is well established and not in doubt. The Employment Tribunal must determine whether the employer genuinely believe on reasonable grounds after as much investigation as was reasonable that the employee had committed the act of misconduct alleged, and that it was proper to dismiss him for that misconduct. The Employment Tribunal’s function is not to substitute its view for that of the employer but to review the decision of the employer. If the employer’s decisions throughout the dismissal process are within the range of reasonable responses there is no room for the Employment Tribunal to interfere with the employer’s decision. In this case the Employment Tribunal in general correctly directed itself as to the law; the issue is whether it applied and acted upon the principles upon which it directed itself

87.
It is helpful to have in mind the helpful guidance of Mummery LJ in London
Ambulance NHS Trust v Small [2009] IRLR 563 at paragraph 43

“It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”

88.

We take the view that the decision in Westminster CC v Cabal [19961 IRLR 399 is of general relevance as to the approach to be taken by an Employment Tribunal where there has been a failure of a disciplinary process, by reason of a failure to follow a contractual procedure. In the present case, the Respondent appointed Ms Rodney to be the dismissing officer in breach of its own procedures. The Employment Tribunal ‘needed to ask whether the Respondent had impeded the Claimant in demonstrating that the real reason for her dismissal was not sufficient.

It is helpful also to refer to s. 98A of the Employment Rights Act 1998. S. 98A was in force at the material time. S. 98A(l) provides that a dismissal would be automatically unfair in circumstances where one of the statutory dismissal and disciplinary procedures applies and had not been complied with. That is not the case here. S .98A(2) then provides:

“Subject to sub-section (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s.98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he bad followed the procedure.”

Elias J in Alexander v Bridgen Enterprises UKEAT/0107/06/DA made clear the simple meaning of

s. 98A(2):

“56. In our view it simply means any procedure which the tribunal considers in fairness the employer ought to have complied with. If the employer has failed to comply with a procedure which ought to have been carried out, that will not render the dismissal unfair if the employer shows that the employee would have been dismissed anyway even had that fair procedure been adopted.”

The correct approach to the application of s. 98A(2) is helpfully set out in the decision
of the Employment Appeal Tribunal in Software 2000 Ltd v Andrews [2007] IRLR
568. Elias J summarised the correct approach having reviewed the authorities as
follows:

“Summary.
54. The following principles emerge from these cases:

(i) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (Re might, for example, have given evidence that he had intended to retire in the near future).

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the

Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(5) An appellate court must be wary about interfering with the Tribunal’s assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role.

(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.

(7) Having considered the evidence, the Tribunal may determine

(a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).

(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced
accordingly.

(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O’Donoghue case.

(d) Employment would have continued indefinitely.

However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.”

Here, the Employment Tribunal only briefly referred to s. 98A(2) both in its
self-direction and in its conclusions at paragraph 97.

We recognize of course that the Employment Tribunal is not bound to refer to all the evidence before it or to all the submissions provided it provides adequate explanations for its decision.
END.

Fiona McCausland -v- Old Warren Partnership Limited

Respondents Submissions

1. Did the Respondent comply with the Statutory Procedures pursuant to the Employment (NI) Order 2003?

a) The Statutory procedures are included in appendix one.

b) It has been accepted that the Respondent has complied with the requirements of paragraph 1(1) - by the letter dated the 28th of August 2009 that the Claimant now accepts that she received.

c) The Claimant has claimed that the Respondent failed to invite her to the rescheduled meeting of the 9th of September. The Respondent’s submissions are that this constitutes a failure to comply with paragraph 1(2) of the statutory procedures.

d) The Respondent’ posted (by ordinary mail) and hand-delivered a copy of the letter of the 28th of August 2008 to the Claimant’s home. The letter was posted by Philip Dean and hand-delivered by bim. One of the copies of this letter was taken from the Claimant’s home by the Claimant’s husband and given to her in Laganview Enterprise Centre. This letter has the sender’s address of ‘Old Warren Partnership, 79 Glebe Walk, Old Warren, Lisburn’.

e) The Claimant failed to attend the original disciplinary hearing of the 4th of September.

f) Following on from the disciplinary hearing of the 4th of September 2009, Mr. Philip Dean posted (by ordinary mail) and had hand-delivered, a copy of the letter re-scheduling the disciplinary hearing and offering three alternative dates for the date of the re-scheduled hearing. Mr. Philip Dean gave evidence that he and asked Mr. Neil Fyfe to deliver this letter, and one for John McStea, to the Claimant’s house. The letter was posted by ordinary mail as, under cross- examination, Mr. Dean stated that he thought that he would have been wasting his time sending it recorded delivery. Mr. Fyfe gave evidence that he was confident that he had delivered the letters to the right house as he knew where the Claimant and her husband lived and that this was the only occasion that he had been asked to deliver a letter to the Claimant’s home. Mr. Fyfe described knocking the door and then posting the letters through a letter box bolted to the wall of the house. Although Mr. Fyfe described the house as being an end-terrace when it was in fact a semi-detached house he was correct when he described the

McCausland v OWP: Respondent Submissions (07532/09IT) Pagel

‘gap’ as being to the right hand side. Mr. Fyfe recollected that he had been asked to deliver the letters at the end of August or start of September.

g) It is the Respondent’s case that the letter of the 4th of September was delivered by hand and was posted to the Claimant’s house. There can be no reason for the Claimant not receiving this letter.

h) Under Regulation 13 of the Dispute Resolution Regulations the Respondent (or Claimant as it might be) is only required to offer two meetings and there is no requirement to arrange a third meeting. This is confirmed in the guidance of the DTI and the ACAS Code of Practice. All three are included at appendix 1.

i) The Claimant’s failure to attend the re-scheduled meeting of the 9th of September brought the Statutory Disciplinary Procedures to an end. The procedures are to be deemed to have completed the relevant procedure as per regulation 13(4).

j) Addressing the Claimant’s submissions at 5(h):

1. The Respondent posted and had hand-delivered the letter of the 4th of September.

2. The letters of the 28th August, 4th September and 9th September were all sent by ordinary post and hand-delivered. Only the letter of the 14th of
August was sent by recorded delivery and this letter was returned as not called for.

3. The letter that the Claimant received was brought to her work by her husband having been picked up from the Claimant’s home. This letter was delivered in the same fashion as the letters of the 4th September and 9th September.

4. The Claimant accepts that the letter of the 28 August was delivered to her home yet none of the other letters sent were accepted as received. This is not accepted by the Respondent. The Claimant made no reference in her ET1 to having received a letter inviting her to attend a disciplinary. In fact, in the Claimant’s ET1, the Claimant alleges that she was ‘dismissed without there being any hearing or appeal and I was given no opportunity to defend myself against any allegations against me.’ This is clearly inaccurate.

5. It is the Respondent’s case that the letter of the 4th September was delivered, once by Mr. Fyfe and once by posting with the Royal Mail.

6. In respect of the Claimant’s name, it is submitted that some who know the Claimant know her as Fiona McStea whilst others know the Claimant as Fiona McCausland. Mr. Fyfe knew both the Claimant and her husband and he was asked to deliver two letters to them. His reference to Fiona McCausland simply reinforces the evidence of Mr. Fyfe that he knew both parties.

• McCausland v OWP: Respondent Submissions (07582/09IT) Page2

7. In respect of Mr. Jamison, he was clear in what he had done and described a blue container/skip in the garden neighbouring the Claimant’s The Claimant accepted the description of the blue container in the neighbouring garden. Mr. Jamison is Sharon Jamison’s husband and does work for Premier (a taxi firm) but it is not accepted that he is an employee of Philip Dean’s. For the sake of clarity, and accepting that this was not in evidence, the taxi drivers of the firm are self-employed and pay a fee to the firm in order to be allocated work.

8. Both drivers gave evidence that this was the only time that Philip Dean had asked them to deliver anything to the Claimant’s house.

9. The ‘Drivers’ and Mr. Philip Dean are well acquainted with the Claimant’s neighbourhood and address and, as such, if it is accepted that the letters
were delivered according to the evidence received, that the letters were delivered to the Claimant’s house.

10. Accepted, however the Claimant accepted that the ‘end’ was to the right of her property.

k) At B19, in a letter to the SEELB, the Claimant refers to receiving a letter inviting her to a disciplinary within a week of the incident There is no reference to being invited to a disciplinary meeting in the doctor’s entry of the 2nd of September (B41), despite the Claimant accepting that she received the letter of the 28th
August, and now claiming that the disciplinary was why she attended her doctor. In the psychiatric report, the Claimant is noted as being seen on the 20th of August 2009 and reference is made to the Claimant being concerned about the prospect of losing her job (B37 — paragraph 1). The Claimant has been inconsistent in her reporting of matters and of information/letters received and it is submitted that her evidence on the matter lack credibility and consistency. The same can be said for the Claimant’s ET1. It was the doctor’s own evidence that he was an advocate for the Claimant .

I) The letters at 814 and C75 do contain some minor differences however it is noted that the Claimant claimed to be handing in the original of the letter sent to her when in fact it was the letter addressed to her husband. The letter at C75 is clearly a retained copy with some minor differences between it and the copy
produced by the Claimant No inferences should be drawn from this matter against the Respondent

m) This is not accepted as the Respondent has given detailed evidence supported by several witnesses that the letter of the 4th September (and 9th September) were delivered.

n) From the writer’s note of Mr. Paisley’s evidence, he accepted that Jennifer Spence would have known that he was working in Glebe Walk after the incident but he

McCausland V OWP: Respondent Submissions (07582/09IT) Páge3

doubted very much that she would have known that he was working there from the 5th of August.

o) In respect of the writer’s note regarding the lodgement of a sickline in Laganview by Mr. Jonathan McMullen, Mr. Paisley stated that he knew that Mr. [vlcMullan had ‘went on the, sick’ and he further accepted that he knew that Mr. McMullan had obtained a sickline but Mr. Paisley did not know if he had received it but that normally a sickline should go to him or Jennifer Spence.

p) Jennifer Spence was not called by the Claimant to prove that she had been given a sickline by the Claimant, nor has a copy of the sickline ever been found by the Respondent

2. Did the Respondent otherwise operate a fair procedure?

a) The full extract from Harvey’s (D. 1435.05 et seq) follows:
“In order to determine whether dismissal for misconduct is fair in circumstances
where the employer suspects that a particular employee has committed the misconduct in question, the following standards, enunciated by Arnold J giving judgment for the
EAT in British Home Stores Ltd v Burchell [19781 IRLR 379, [1980] ICR 303 provide valuable guidelines:

‘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 necessarily, 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 than 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 thin/c who must not be examined further.
It is not relevant, as we thin/c that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we thin/c for the tribunal to examine the
quality of the material which the employer had before him, 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

McCausland v OWP: Respondent submissions (07582/09IT) Page4

balance of probabilities will in any surmisable circumstances be a reasonable conclusion

[1454]

It must be emphasise4 however, that a tribunal will not necessarily err f it fails to follow these guidelines. The touchstone remains ERtsA s 98(4) as the EAT was keen to stress in Royal Society for the Protection of Birds it Croucher [19841 IRLR 425. [1984] ICR 604. However, these guidelines were followed in Scowls/i Special Housing Association it Cooke [19791 JRLR 264, and W M Low & Co Ltd v MacCuish [19791 IRLR 458. Although they have generally been applied to suspected dishonesty, they are, as the dictum of Arnold J indicates, equally applicable to other forms of misconduct, a point confirmed by the EAT in Distillers Co (Bottling Services) Ltd v Gardner 119821 IRLR 47.

[1455]

However, two important qualifications need to be made to this test. First, because of a change in the burden of proof since the Burchell decision; the onus is not on the employer to establish the last two elements, though it remains on him to satisfy the tribunal that he genuinely did dismiss for misconduct (see Boys and Girls Welfare Society v McDonald [19961 IRLI? 129. [1997] ICR 693).”

b)
1. The Respondent has given evidence in respect of the belief that they held regarding the conduct alleged and have given evidence as to the matters that were before them in considering the disciplinary proceedings. Both Mr. Philip Dean and Mrs. Sharon Jamison described what happened at the meeting of the 9th of September and should be taken to have discharged the burden of showing that they. held a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct alleged to have occurred on the 4th of August, at the time of the hearing and that this was the reason for the dismissal. The statements are contained at C20-21 & C43-5O. Both members of the disciplinary panel gave evidence as to their consideration of all of these statements.
2. The two other matters relating to investigation and the need to have reasonable grounds for the belief have been made out on the evidence of Ms. Tracey Black, Mr. Philip Dean and Sharon Jamison.
3. The considerations in Burchell are not absolute per Harvey D.1454.
4. The onus as regards reasonable grounds for the belief and proving a reasonable investigation is neutral.
5. “Nor is Burchell to be understood as saying that an employer who falls one or more of the three tests is, without more, guilty of unfair dismissal The industrial tribunal must ask itself whether dismissal fell within the range of reasonable responses” Boys & Girls Welfare Society v McDonald [1996]
ICR 693 (Headnote at Appendix 2).

McCausland V OWP: respondent Submissions (07582/09IT) Page5

c)
1. A proportionate investigation was conducted, given the corroborating complaints lodged by both Mr. Denis Paisley and Mr. Jonathan McMullan. Ms. Tracey Black spoke to everyone who had been present that she could speak to and several persons provided statements in respect of what the statement writers had heard and seen of the events occurring on the 4th of August No further investigation could have been expected or warranted. The Claimant’s opportunity to put her case was at the Disciplinary hearing of the 4th of September and the re-scheduled hearing that took place on the 9th of September (or at her request one of the alternative dates
offered).
2. The Claimant was notified of the nature of the charge and procedure — The
Respondent has accepted this.
3. A disciplinary hearing was convened and re-scheduled upon the
Claimant’s non-attendance. She was twice given the opportunity to defend
herself. The Claimant was given the right to be heard but did not avail of
this right There has been no ‘failure to permit’ the Claimant to be heard.
Even if there has been a failure, the decision in Boys & Girls Welfare
Society makes it clear that a failure under this heading will not, without
more, render a dismissal unfair. The ACAS code of practice (at paragraph
38) also accepts that “it is a core principle of reasonable behaviour that
employers should give employees the opportunity of putting their case at a
disciplinary meeting before deciding whether to take action. “The core
principle is that the employee is given the opportunity of putting their
case. -
4. The Respondent notified the Claimant of the outcome of the disciplinary
hearing and gave her the opportunity to appeal the decision. This was in
the letter sent on the 9th of September and hand-delivered by Mr. Jamison.
The evidence regarding this has already been referred to and it is
submitted that the tribunal should accept that the Claimant was notified of
the decision and given the right to appeal.

d) The Claimant failed to attend either disciplinary hearing which she was properly notified of. The Claimant’s opportunity to state her case would have been given at the disciplinary hearing. C31-34 are the notes prepared for the disciplinary hearing and clearly show that the Claimant was to be given her opportunity to read, consider and respond to the statements as well as make any representations that she wished regarding any other matters that the Claimant would wish to address (final inclusion at C32).
e) The Claimant was given the opportunity to address all of these matters at the disciplinary hearings that were convened.

f) The matter can be looked at in the round and the tribunal should consider the case as a whole in deciding upon the fairness of the proceedings:- Harvey DI
1011:

McCausland v OWP Respondent Submissions (07582/09IT) Page6

“the court of Appeal in Taylor v OCS Group Ltd (2006] EWCA Civ 702, 1200611CR 1602 has stressed that tribunals should not consider procedural fairness separately from other issues arising. They should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient
reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, a tribunal might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the
- decision to dismiss was nearer to the borderline, the tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee The Court of Appeal said the following dicta of Donaldson U in Union of Construction, Allied Trades and Technicians v Brain (1981] IRLR 224 was worth repetition:

‘Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity — and that, of
course, means common fairness and not a particular branch of the law — and to the substantial merits of the case, the tribunal’s duty is really very plain .It has to look at the question in the round and without regard to a lawyer’s technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.’

The Respondent does not accept that there has been any procedural defect in the disciplinary process. The Claimant chose not to attend either hearing, and the Respondent acted properly in their conduct of the investigation, the disciplinary process and the decision-making process. If a defect is found it is submitted that the Claimant’s acceptance that she acted improperly and accepted that she called Mr. Denis Paisley a wanker on four occasions and called him a racist are so serious as to place a dismissal within a band of reasonable responses.

g) The .ACAS guidance already referred to states at paragraph 33:

“33. Where an employee fails to attend a meeting held as pan of the statutory discipline procedure without good reason the statutory procedure comes to an end. In those circumstances the employee’s compensation may be
reduced if he/she brings a successful complaint before a tribunal. If either the employee or employer has a good reason for non-attendance at the meeting, the employer must re-arrange the meeting. If either the employee or
employer does not attend the re-arranged meeting for good reason the employer need not arrange a third meeting but there will be no adjustment of compensation.”

McCausland v OWP: Respondent Submissions (07582/09IT) Page7

It is not a requirement of the statutory procedures that an employer can only fairly dismiss where there is compelling justification for doing so without having heard the employee.

h)
1. The Respondent does not accept that they ever received the sickline and certainly were not aware of it at the time of the hearings.
2. The ACAS guidance (para 17 appendix 1) gives a timeframe for a rearranged meeting of not more than five working days. The timescale in this case is five days (4th to the 9th of September) as well as offering alternative days. It is accepted by the Claimant that she did not see Mr. Denis Paisley after the 6th of August It is submitted that it is clear from the papers at 67 and C58 that there were issues regarding communications between Jennifer Spence and her employers as a result of directions
issued by Mr. John McStea. The Claimant accepted that the hand-written note at C57 was her husband’s handwriting.
3. Mr. Denis Paisley denied ever receiving the sickline he also gave evidence that he was unable to access documentation at the relevant time. He was receiving some mail from Moira Johns however Moira Johns was clear in her evidence that she would not take mail from Denis Paisley’s desk and the only mail she would take from him would be mail with a youth work stamp from the foyer.
4. The Respondent had hand-delivered and posted, through Royal Mail, the letters notifying her of the hearing. The senders address was clearly stated as 79 Glebe Walk on the letter that she accepts receiving of the 28th of August. The letter sent subsequent to the meeting arranged for the 4th of September has 79 Glebe Walk as the sender’s address.
5. Mr. Philip Dean gave evidence that no One was asked to approach the Claimant as he did not want to put anybody in that position given the allegations against the Claimant The Claimant chose not to attend, having been given the opportunity to attend two hearings and did not communicate to her employers that she was unable or unwilling to attend.

3: Was it reasonable for the Respondent to proceed with the hearing on the 9’ of September 2009?

a. The Respondent’s have given evidence that they were unaware of the existence of the sickline and in any event it is permissible under the ACAS guidance to proceed with a disciplinary hearing in the absence of the Claimant in these circumstances — even had the existence of the sickline been known to the Respondent.

McCausland v OWP Respondent Submissions (07852/09IT • Page8

b. Denis. Paisley gave evidence that documents were not able to be obtained and the Respondent denies ever coming into possession of the sickline, either at the time of the hearings or subsequent There is clear evidence of interference with the operations of the Respondent by the handwritten letter of Mr. John McStea (at C57J and the e-mail sent by Jennifer Spence (at C58). Any difficulties were not as a result Of a deficiency on the part of the Respondent but by issues caused by the Claimant and her husband.

c. This is denied.

d. Evidence was received in respect of the access issues and this matter has already been dealt with above.

e. These matters have already been dealt with above.

f. The Respondent had Mr. Fyfe and Mr. Jamison hand-deliver and Mr. Philip Dean posted both sets of letters.

4. Why was the Claimant dismissed?

a. Mr. Denis Paisley was excluded entirely from the process save for providing his statement of complaint The Respondent had and was operating a disciplinary process that the Claimant should have been aware of as although she denied receiving a copy of it herself she accepted that she would have given it to other employees. Under the policy, Gross Misconduct “includes theft fighting, abusive or discriminatory behaviour or other serious breaches of contract”

b. The charges all relate to incidents on the 4th of August Mr. McMullan in his initial letter of complaint refers to “two serious incidents which occurred on Tuesday 4th August2009.” (C20) Mr. McMullan’s second statement starts” On Tuesday 4th August”: (C43J Mr. Denis Paisley’s recording of events is entitled “Tuesday 4th August2009 — Counselling Room, Laganview Enterprise centre”: (C45) Mi incidents complained of occurred on this day.

c.. The letter of dismissal states: “the reason for your dismissal is that you were found guilt)’ of gross misconduct in relation to the manner in which you conducted yourself at your workplace on the 4th of August 2009 specifically in relation to your conduct towards Dennis Paisley. “The stated reason includes the Claimant’s conduct at her workplace on the 4th of August that would encompass the allegations made by both Mr. Denis Paisley and Mr. Jonathan McMullan.

McCausland v OWP: Respondent Submissions (07582/09IT) Page9

d. Mr. Dean in his evidence testified that he and Mrs. Sharon Jamison went through the statements and the hearing notes that had been prepared as well as the contract of employment and disciplinary procedure. He testified that they considered the allegations and found them to constitute Gross Misconduct. Mr. Dean referred to the abusive and derogatory comments made to Denis Paisley, the physical and verbal abuse of Mr. Paisley and the actions in asking Mr. McMullan to sign John McStea as a director of the partnership. The effect on Mr. McMullan of the undue pressure and the impact on him given his depression was also considered. Mr. Dean stated that lesser penalties were considered but “none of the others seemed serious enough to reflect what happened.” Mr. Dean also gave evidence that the Claimant’s lack of any disciplinary record was taken into consideration and the lack of contact from the Claimant (and her husband) was also noted.

e. Sharon Jamison, it is accepted, referred to groups pulling out in her evidence-in-chief however when she was cross-examined on the matter she clarified what she had said. Mrs. Jamison gave evidence that Denis Paisley and Jonathan McMullan were not working there (Laganview) and it needed to be sorted out; she went on to say that the Gross Misconduct was what had been done to Denis and did not link the moving of groups away from the Respondent to the Claimant’s dismissal. When questioned by the panel about whether alternatives to dismissal were considered Mrs. Jamison stated that they were but went on to say that the conduct had gone too far.

f. Mrs. Jamison provided clarification on this issue.

g. Accepted.

h. This is rejected by the Respondent on the basis of the letter of the 9th of September and the evidence given by Mrs. Sharon Jamison and Mr. Philip Dean.

i. The Claimant was dismissed for her conduct on the 4th of August 2009 in line with the disciplinary letter of the 28th of August, the decision letter of the 9th of September, the evidence received and on the basis of the statements before the disciplinary panel and the tribunal.

j. This has been dealt with above.

The Claimant’s position

McCausland V OWP: Respondent Submissions (07582/09IT) Pagel0

k. It is submitted that the Claimant’s argument is contradictory in that if a new body has been set up to obtain funding then there would be no need to remove the Claimant from her position or to take over the Old Warren Partnership as it currently stands. The Claimant has contended that her removal was engineered so that funding could be channelled to the Old Warren Partnership keeping statutory bodies out whilst at the same time
claiming that the Old Warren Partnership is being run down. It would appear that these are contradictory positions,

l. Mr. Dean gave evidence that he acts as a volunteer director for the Old Warren Partnership and works as a director of a taxi firm. His position
with the Old Warren Partnership is voluntary and not his occupation. He
could not be expected to operate the same sort of control over the
operations as a full-time salaried manager/employer would. Mrs. Jamison runs a convenience shop and, again, is a volunteer director and not a full-time manager/employer in the traditional sense. Mr. Dean was dear in his evidence that he did not ask anyone to approach the Claimant and remove her from Laganview as he did not want anyone to be put in that position. The panel has heard evidence regarding difficulties in accessing Laganview and obtaining documentation and files.

m. Mr. Paisley is a director in a new initiative, evidence was not received from him on this matter. It is notable that none of the other directors of the Old Warren Partnership are directors of this initiative and it is clear from the addresses given of those directors that the body is not an Old Warren enterprise. The addresses include three from Lisburn, one from Belfast one from Lurgan and one from Ballyward. It is submitted that the new body bears no relevance to proceedings.

n. The Claimant was dismissed for the stated reason.

o. The Claimant was on a fixed term contract (of five years) and the letter of the 22nd of July (C19) is a positive letter citing the development of groups and the ability of those groups to self-sustain as a positive development The letter also makes it clear that the “Partnership will continue to provide a vehicle for the current funded projects but will not be seeking any further funding for projects...” Thus, the reaction of the Claimant was not in any way understandable as there was no risk to her position under the term of her contract i.e. the project and funding was to continue and run its full course.

McCausland v OWP: Respondent Submissions (07582/09IT) Page11

p. The conduct was extremely serious and disciplinary proceedings were warranted and justified. The Respondent rejects this entirely.

q. These matters were considered by the disciplinary panel.

r. This is denied.

s. The Claimant was given several opportunities to be heard. A full and proper process was carried out as can be seen from the Respondent’s
discovery. The panel were entitled to reach the conclusions reached and
so properly and reasonably.

t. Mr. Paisley maintained that a letter had been stuffed down his jacket and the zip pulled up, whether it was the original letter or a copy he was
unable to be certain.

i. Mr. Paisley gave evidence as regards the alleged conversations and it is submitted that the documentation provided by the Claimant
contains no probative material that the tribunal could base any
findings on.

ii. The meetings were minuted and Mr. Paisley gave such evidence as he was able to given the passage of time.

iii.. Mr. Paisley gave evidence that the Old Warren Partnership was a community project and to bring in statutory bodies would change
the nature of the organisation. It is submitted that no adverse
findings should be made from this issue. What is clear is that the appointment of the two Polish directors was to be discussed with the individuals involved (Para 3 C35). There is nothing to suggest any financial governance issues arising out of the conduct of the directors.

iv. Mr. Paisley gave evidence on this matter and stated that he did not
feel it was right that he was being directed by an employee. It is
submitted that this is a reasonable and proper position.

v. The appointment of two polish directors was to be discussed with
the individuals involved. It is also given in evidence that the
Welcome project has secured further funding through the Old

McCausland v OWP; Respondcnt Submissions (07582/09IT) Page12

Warren Partnership. It is submitted that this clearly evidence of an acceptance and supportive attitude to diversity by the Respondent

vi. The reasons pertaining to the letter of the 22nd July being written and the decisions are in evidence.

vii. Mrs. Jamison clarified this, as referred to above.

v. Mrs. Jamison’s evidence is referred to above. The reason for the dismissal is as already stated. The funding of the Claimant’s project was for a fixed term, there was no need or reason to remove the Claimant for her position and no motivation to remove the Claimant outside the conduct for which she was disciplined.

5. Was the Claimant fairly dismissed?

a. The Claimant was fairly dismissed.

b. These matters are dealt with elsewhere.

c. See below.

6. Was the Claimant unfairly dismissed for substantive reasons?

a. On the basis of a proper investigation and on the basis of the evidence before the disciplinary hearing the panel had a genuine belief that the Claimant committed Gross Misconduct and the decision to dismiss was within the band of reasonable responses..

b. This is rejected for the reasons already stated.

c. There was no risk to the Claimant’s job on foot of the letter of the 22 July. There could be no justification for her to react in the way that she did. The gross misconduct was properly found and there has been no use of her Gross Misconduct as a pretext. –

d. The Respondent has established both the reason for the dismissal and the grounds for believing the facts to be as they found them.

e. This is rejected by the Respondent

f. This matter was clarified by Mrs. Jamison, this has already been addressed.

McCausland v OWP: Respondent Submissions (07582/09IT) Page13

g. Dismissal was both proportionate and within the band of reasonable responses — not least given the effect on both Mr. Paisley and Mr. McMullan; both of whom did not continue to work in Laganview Enterprise centre following on from the incident.

i. Mrs. Jamison provided evidence on alternatives to dismissal
including to the tribunal panel inter alia she confirmed that it was
felt that a final written warning would have been insufficient as the
matter had gone too far. Mr. Dean also gave evidence regarding
alternatives to dismissal.

ii. There being no risk to the Claimant’s job arising out of the letter of
the 22nd July, there was no context to consider.

iii. The panel formed a genuine belief in the Claimant’s guilt on the
basis of the information before them. It was reasonable for them to
rely upon this information and had arisen out of the investigation
and complaints lodged. The Claimant was given the opportunity to
attend a hearing. Mr. Paisley maintained, at the tribunal hearing,
that this incident had occurred.

iv. The Claimant’s record was considered, as stated in evidence by
Mrs. Jamison and Mr. Dean. The finding of Gross Misconduct warranted dismissal irrespective of these issues.

h. This is denied.

7. Was the Claimant unfairly dismissed by reason of a procedural failure only?

a. The statutory procedures came to an end when the Claimant failed to attend the second meeting. There has been no breach of the statutory procedures and the procedures should be deemed to have been completed. Art 130A does not become operable unless the tribunal rejects
the Respondent’s evidence as regards the sending of the notifications off the meetings and that they contained an invitation to a meeting — which is the requirement under paragraph 1(2) of the procedures. Article 130 of the Employment Rights (NI) Order is the proper consideration, as contained in appendix 2 and the case of Rogan v SHE&SCT is also referred
(inc. in a separate file for ease of reference).

b. If the employer’s decisions throughout the dismissal process are within
the range of reasonable responses there is no room for the Employment
Tribunal to interfere with the employer’s decision. (Milton Keynes General
NHS Trust v Southcote-Want, EAT, 27th January 2010 — para 86 & BOYS.
AND GIRLS WELFARE SOCIETY (appellants) v. McDONALD (respondent)
1996 [IRLR] 129 (appendix 2))

McCausland v OWP: Respondent Submissions (07582/09IT Pagel4

c. Even should the panel decide that there has been a breach of the. statutory procedures, it is for the tribunal to ‘identify and consider any evidence. which it can with some confidence deploy to predict what would have happened had there been no unfair dismissal” (From appendix A of the Claimant’s submissions) The tribunal must decide, if this is to be considered, what evidence there is that may allow a prediction as to what would have happened. The tribunal has before it the evidence of the complainants and the witnesses to the events of the 4th of August and the evidence of the deliberations of the disciplinary panel along with the admissions of the Claimant From these matters it should be open to the tribunal to be able to predict what would have happened had there been no unfair dismissal.
d. The Respondent has complied with the statutory procedures and carried
out a proper procedure in any event In the alternative, the tribunal must have regard to the matters noted above and assess the effect of any deemed failings and have regard to compensation having reflected upon the evidence.
e. The tribunal should not make any award in this case, alternatively, any award should be reduced to reflect the equity and substantial merits of the case.
f. Evidence was received from both Mr. Dean and Mrs. Jamison regarding their consideration of the disciplinary. The decisions at each point were within the band of reasonable responses and after obtaining legal advice.
g. The Respondent has discharged the burden in that they have
demonstrated a compliance with the statutory procedures and the evidence should constitute proof that the Respondent at all times operated within the band of reasonable responses.
h. This is not accepted. The claim and defence of it revolves around the service and receipt of documentation by both sides, the procedures,
whether or not the actions of the Respondent were in the band of
reasonable responses and the matter should be decided in the
Respondent’s favour to reflect the equity and substantial merits of the
case.

McCausland V OWP: Respondent Submissions (07582/09IT) Page15

8. Has the Respondent persuaded the Tribunal that the Claimant would have been dismissed anyway even if there had been no procedural failure pursuant to Article 130A(2) of the Employment Rights (NI) Order 1996?

a. It is not accepted that the Claimant was not permitted to take part in the process. The Claimant was invited to several meetings and attended neither of the meetings that were held. The Respondent was entitled to proceed with the disciplinary in her absence. These actions were within the band of reasonable responses.

b. The disciplinary panel considered the Claimant’s record and the alternatives to dismissal. Dismissal was within the band of reasonable responses. It is a matter for the tribunal to accept or reject (and reduce any award that may be made) on the basis of the evidence before it and taking into regard the substantial. merits, and equity in the case.

9. What other issues are relevant to the Article 130A(2) issue?

a. The Claimant was clearly intending to leave the employment of the Respondent as she applied for a position with an alternative employer prior to her disciplinary hearing and prior to her attending with her doctor for a sickline. The date of the application is the same date as the letter regarding the disciplinary was sent out (824 and C23). The Claimant gave evidence that she submitted her application prior to receiving the letter regarding a disciplinary hearing with the Respondent The Claimant was intending to leave the employment of the Respondent irrespective of any disciplinary proceedings and this should be reflected in any award that may be made.

b. The Claimant, in her ET1, put the date that she found out as mid- September. The Claimant has also produced a letter of resignation purportedly delivered to the Respondent’s offices on or about the (817A and D13A) 24th of September 2009. The Claimant’s employment with the Respondent would have ended from in or about this date or the date when she started work with the Anti-Poverty Network

c. This is a matter for the Claimant, however, it is noted that the employers “are negotiating to extend the position until December2010.” (B 24)

10. If the Claimant was unfairly dismissed, is there any contributory fault and if so how should it be assessed?

McCausland V OWP: Respondent Submissions. (07582/09IT) Page16

a. The Respondent regards the Claimant’s actions on the 4th of August to go far beyond inappropriate the use of and offensive language.

b. There being no impact upon the Claimant’s position within the Respondent the actions were rightly regarded as Gross Misconduct by the Respondent.

c. There should be a complete reduction of compensation in line with the case of Toshiba v Goodin and/or a reduction under Polkey having regard for the substantial merits and equity of the claim and as is just and equitable in the circumstances. Further, the schedule of loss includes amounts for a period in which the Claimant’s current employment may continue (per B24) and it is entirely inequitable to make any award for fixture loss, or at all.

d. As above

McCausland v OWP: Respondent Submissions (07582/09IT) Page17

Appendix 1

The Employment (Northern Ireland} Order 2003¹

DISMISSAL AND DISCIPLINARY PROCEDURES

CHAPTER 1

STANDARD PROCEDURE

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.

Step 3: appeal

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

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

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

‘http://www.opsi.gov.LJIQ’51/5i2003/20032902.htm#schl

McCausland v OWP: Respondent Submissions (07582/09IT) Page-18

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final
decision.

McCausland v OWP: Respondent Submissions (07582/09IT) Page.19

Employment Rights (NI) Order 1996²

Procedural fairness

130A. —(1) An employee who is dismissed shall be regarded for the purposes of this Part as
unfairly dismissed if—

(a) one of the procedures set out in Part I of Schedule I to the Employment (Northern Ire land)
Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the
employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 1 30(4)(a) as by itself making the employers action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a
procedure or failure to comply with the requirements of such a procedure shall be determined
by reference to regulations under Article 17 of that Order.

2
http://www.statutelaw.gov.uk/legResults.aspx?Legtype=All+Legislation&searchEnacted=O&extentmatchOnly=O&confersPower=O&blanketAmendment=o&sortAtpha=O&PageNumber=O&NavFrom=O&activerextDocld=300
0384

McCausland v OWP Respondent Submissions (07582/09IT) Page.20

Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004

Failure to attend a meeting³

13. - (1) Without prejudice to regulation 11(2) and (3)(c), if it is not reasonably practicable for -
(a) the employee, or, if he is exercising his right under Article 12 of the Order of 1999 (right to be accompanied), his companion; or

(b) the employer,

to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee or, as the case may be, employer shall not be treated as having failed to comply with that requirement of the procedure.

(2) In the circumstances set out in paragraph (1), the employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting and, where the employee is exercising his rights under Article 12 of the Order of 1999 and the employee proposes an alternative time under paragraph (4) of that Article, the employer shall be under a duty to invite the employee to attend a meeting at that time.

(3) The duty to invite the employee to attend a meeting referred to in paragraph (2) shall cease if the employer has invited the employee to attend two meetings and paragraph (1) applied in relation to each of them.

(4) Where the duty in paragraph (2) has ceased as a result of paragraph (3), the parties shall be treated as having complied with the applicable statutory procedure.

McCausland v OWP: Respondent Submissions (07582/09IT) Page21

DTI Guidance on the Employment Act 2002 (Dispute Resolution) Regulations 2004and associated provisions in the Employment Act 20O2⁴

Rearranging meetings

105. If the employer, the employee or the employee’s companion cannot reasonably attend a Step Two or Step Three meeting for a reason that was not reasonably foreseeable at the time the meeting was arranged, the
meeting must be rearranged. For example, one of the parties may be ill, or
his/her car may break down on the way to the meeting.

106. However, if either party did not attend the meeting and the failure
could be reasonably foreseen, then neither party will be under any further
obligation under the statutory procedures. The tribunal may choose to
attribute responsibility for failure, with the commensurate impact on award adjustment.

107. If the employee’s companion cannot reasonably attend the meeting, the provisions of section 10 of the Employment Relations Act 1999 apply. This provides that the employee must propose an alternative date within 5 days. If acceptable, the employer must then invite all parties to attend at this new time.

108. The employer is obliged to rearrange the meeting once. However, if the meeting falls through a second time for unforeseeable reasons, neither party will be under any further obligation under the statutory procedures. In these circumstances, neither party will beheld at fault for failure to complete the procedure, therefore award adjustment will not apply. Furthermore, both parties will be treated as having complied with the relevant statutory
procedures so, if applicable, the normal time limit for making a tribunal application maybe extended (see paragraphs 126 to 128 for details).

http://www.dti.gov.ulcfflles/fiIeflsj6.pdf?pubpdfload=04%2F1103

McCausland v OWP: Respondent Submissions (07582/09IT) Page22

LRA Code of Practice: Disciplinary & Grievance Procedures⁵

17. An employee who cannot attend a meeting should inform the employer in advance whenever possible. If the employee fails to attend through
circumstances outside his/her control and unforeseeable at the time the
meeting was arranged (e.g. illness) the employer should arrange another meeting. Employees should be made aware that decisions may be taken in their absence if they fail to attend re-arranged meetings without good reason. If an employee’s ‘statutory companion’ (see Section 3) cannot attend on a proposed date, the employee can suggest another date so long as it is
reasonable and is not more than five working days after the date originally proposed by the employer. This five day time limit may be extended by
mutual agreement.

33. Where an employee fails to attend a meeting held as part of the statutory discipline procedure without good reason the statutory procedure comes to an end. In those circumstances the employee’s compensation may be
reduced if he/she brings a successful complaint before a tribunal. If either the employee or employer has a goad reason for non-attendance at the meeting, the employer must re-arrange the meeting. If either the employee or
employer does not attend the re-arranged meeting for good reason the
employer need not arrange a third meeting but there will be no adjustment of compensation.

38. It is a core principle of reasonable behaviour that employers should give employees the opportunity of putting their case at a disciplinary meeting
before deciding whether to take action. This principle applies as much to cases of gross misconduct as it does to ordinary cases of misconduct or
unsatisfactory performance. There may however be some very limited cases where despite the fact that an employer has dismissed an employee
immediately without a meeting a tribunal will, very exceptionally, find the
dismissal to be fair. To allow for these cases there is a statutory modified
procedure under which the employer is required to write to the employee after the dismissal setting out various details relating to the dismissal and to hold an appeal meeting, if the employee wants one. The statutory procedure that must be followed by employers in such cases is set out in Annex B. If an employer fails to follow this procedure and the case goes to tribunal, the dismissal will be found to be automatically unfair.

http://www.lra.org.uk/disciplinary-l.pdf
McCausland v OWP: Respondent Submissions (07582/09IT) Page23

Appendix 2

Employment Rights (NI) Order 1996⁶

General

130. — (l) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it—

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without
contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

(3) In paragraph (2)(a)—

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of paragraph (1), 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 in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.
&
0&confersPower=O&blanketArnendment=O&sortAlpha=O&PageNumber=O&NavFrom=O&activeTextoocld=300
0384
McCausland v OWP: Respondent Submissions (07582/091T) Page24

BOYS AND GIRLS WELFARE SOCIETY (appellants) v. McDONALD (respondent)
1996 [IRLR] 129

The facts:

Mr McDonald was employed by the appellants as a residential social worker at a children’s home. During an altercation with one of the children at the home, he allegedly spat at the boy and hit him in the face. At a disciplinary hearing, Mr McDonald admitted that he had spat back after the boy had spat in his face and that he may have caught the boy in the face whilst trying to push him away. The disciplinary panel concluded that there had been a serious breath of the rules and that Mr McDonald should be dismissed. His appeal against dismissal was unsuccessful.

An industrial tribunal found that the dismissal was unfair. According to the tribunal, although the employers genuinely believed that Mc McDonald was guilty of the alleged misconduct, it was not satisfied that they had reasonable grounds for that belief or that they had conducted a reasonable investigation into the matter. The tribunal considered that the boy concerned should have been interviewed by a member of the disciplinary panel and that the extreme provocation which Mr McDonald had suffered should have been taken into account

The Employment Appeal Tribunal (Judge P Clark Mr J A Scouller, Mr P M Smith) in a reserved decision given on 27 November 1995 allowed the appeal and remitted the case to a fresh industrial tribunal for rehearing.

The EAT held:

The industrial tribunal had erred in holding that the respondent employee’s dismissal on grounds of conduct was unfair because, applying the threefold test set out in British
Home Stores Ltd v Burchell 119781 IRLR 379. it was hot satisfied that the employers had reasonable grounds for believing that the employee was guilty of the alleged misconduct or that they had conducted a reasonable investigation into the matter.

Burchell [1978] IRLR 379 was decided before the amendment to s.57(3) of the Employment Protection (Consolidation) Act, which established a neutral burden of
proof. Therefore, a simplistic application of the Burchell [1978] IRLR 379 test in each
and every case involving dismissal on grounds of conduct raises a danger of the industrial tribunal falling into error by placing the onus of proof on the employer to satisfy it as to reasonableness. In any event, leaving aside the onus of proof, Burchell 11978] IRLR 379 may not be appropriate where there is no real conflict on the facts. Nor is Burchell [1978J IRLR 379 to be understood as saying that an employer who tails one or more of the three tests is, without more, guilty of unfair dismissal. The industrial tribunal must ask itself whether dismissal fell within the range of reasonable responses;

In the present case, despite reminding itself of the current wording of the statute, the industrial tribunal had applied an incorrect burden of proof. It also fell into the trap of substituting its own view of the facts for that of management, and it did not ask itself whether, in the true circumstances of the case, dismissal fell within the range of reasonable responses.

McCausland v OWP: Respondent Submissions (07582/09IT) Page25