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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Coburn v Roadside Motors (Moneymore) Li... [2010] NIIT 1130_10IT (20 October 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1130_10IT.html
Cite as: [2010] NIIT 1130_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1130/10
CLAIMANT: Brian George Coburn
RESPONDENT: Roadside Motors (Moneymore) Limited
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and compensation of £32,214.94 is awarded calculated as set out in this decision.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr S Adair
Mr W Irwin
Appearances:
The claimant was represented by Mr R Cochlane, Barrister-at-Law, instructed by Nelson Singleton Solicitors.
The respondent was represented by Mr N Richards, Barrister-at-Law, instructed by McCorkell Legal and Commercial.
BACKGROUND
(1) The respondent is a retail motor trader with garages, each comprising a showroom and a workshop, in Lisburn and Lurgan.
(2) The claimant is a motor technician. In 1972 he started his apprenticeship in the Lisburn garage. He finished that apprenticeship in 1975 and remained in employment in the Lisburn garage. The respondent acquired the Lisburn garage in 2003 and the claimant’s employment transferred to the respondent under the Transfer of Undertakings (Protection of Employment) Regulations 1981.
(3) The claimant was summarily dismissed on 16 February 2010.
THE ISSUES
(4) The issues for determination by the tribunal were:-
(i) Whether the claimant had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996?
(ii) Whether the respondent had failed to provide the claimant with a written statement of his terms and conditions of service contrary to the 1996 Order?
(iii) Whether the respondent had been in breach of contract in failing to pay notice pay?
GENERAL FINDINGS OF FACT
(5) At all relevant times, the claimant was employed as a motor technician in the respondent’s garage in Lisburn. His normal finishing time was 5.20 pm on Monday to Thursday, and 5.00 pm on Friday.
(6) On Wednesday, 10 February 2010, the claimant inspected a Peugeot 205. He diagnosed various faults including seized brake pads. Some parts were ordered but not brake pads or discs.
(7) The claimant was working on this vehicle on Friday afternoon, 12 February 2010. He repaired the rear brakes and finished that job at approximately 4.15 pm. He took the vehicle out for a road test. It was pulling to one side on braking. He put the car back on the ramp and told the service manager, Mr Perry, that the front brake pads were seized. This occurred about 4.30 pm.
(8) Mr Perry told him to remove the brake pads. He did so and then went back from the workshop into the showroom area where Mr Perry had his office. He asked Mr Perry to come down to the workshop to look at the pads and the discs. Mr Perry did so and told the claimant to change both the pads and the discs. This occurred about 4.45 pm.
FORMAT OF DECISION
(9) The tribunal is conscious that its approach to decision making in relation to the issue of unfair dismissal and the issue of contributory misconduct must differ. The GB Court of Appeal, in the case of London Ambulance Service NHS Trust v Simon Small [2009] EWCA CIB 220 discussed the difficulties facing tribunals in mixed cases of this type. It stated:-
“(46) Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgements. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and, increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”
(10) This decision will therefore deal separately with the relevant findings of fact in relation to unfair dismissal and those in relation to contributory conduct.
FINDINGS OF FACT - UNFAIR DISMISSAL
(11) The respondent company had only two Directors. One was Mr Brian Hutchinson and the other was his brother, Ian Hutchinson.
(12) On Saturday morning, 13 February 2010, Mr Brian Hutchinson was telephoned by Mr Jeff McIlroy, the senior manager in the Lisburn garage. Mr McIlroy told him that an incident had taken place on Friday afternoon, 12 February 2010. He explained that the claimant had been aggressive both to him and to Mr Perry, the service manager in Lisburn.
(13) Mr Brian Hutchinson agreed to go to the Lisburn garage on Monday, 15 February to deal with this issue. He also e-mailed a Ms Sheelynne Duxbury, the Accounts Manager in Lisburn, who had an office adjoining the showroom area. She replied to that e-mail:-
“Happened just after you left. It was appalling.”
(14) Mr Brian Hutchinson went to Lisburn on 15 February and spoke first to Mr Perry and then to Mr McIlroy. Mr Perry’s version of events was that he had spoken to the claimant at about 4.00 pm to tell him that the car that he was working on would have to go out that day or that he (Mr Perry) would have to finish the job. Mr Perry said that the claimant’s response was abusive and aggressive from the start. The claimant had sworn at him and said he was “f-ing” going home at 5.00 pm. Mr Perry told the claimant that he had taken 45 minutes off on the previous day for a doctor’s appointment and that he (Mr Perry) required a bit of give and take from the claimant. The claimant said the car needed “f-ing” brakes and pads and that the “f-ing” place would not have the “f-ing” discs and pads in stock. Mr Perry went to the Parts Department and found that the parts were in fact in stock. He gave the pads and disc to the claimant. The claimant threw the disc down. The claimant was shouting at Mr Perry at this stage.
(15) Mr Brian Hutchinson took no contemporaneous notes of this interview but compiled a written record later that day. That records Mr Perry as telling Mr Hutchinson that the claimant “threw the disc across the floor in a rage”. That does not accord exactly with Mr Hutchinson’s evidence to the tribunal, recounting this interview, where he said that he was told that the claimant threw the disc down.
(16) The written record compiled by Mr Hutchinson records that Mr Perry alleged that the claimant later “came into the showroom shouting and swearing at Ken and Jeff”. That does not accord with the written statements compiled later by Mr Perry and by Mr McIlroy on 12 March for the purposes of the appeal. In those statements, neither Mr Perry or Mr McIlroy alleged the claimant had sworn or used bad language in the showroom area, to which the public and customers had access.
(17) The written record of Mr Hutchinson’s discussion with Mr McIlroy indicated that Mr McIlroy told Mr Hutchinson that he had felt intimidated by the claimant’s aggressive behaviour.
(18) It would undoubtedly have been better for all concerned if Mr Hutchinson had either taken proper contemporaneous notes of these interviews or had taken proper statements.
(19) In any event, Mr Hutchinson wrote a letter to the claimant which was hand delivered to him about lunchtime on that same day, ie, Monday, 15 February. He invited him to a meeting later that afternoon. That letter stated:-
“This letter invites you to attend a meeting this afternoon at 3.45 pm in my office to discuss your abusive behaviour on Friday, 12 February 2010, and your continuing negligence in carrying out your work. You have the right to ask a colleague to accompany you to the meeting. This meeting may result in disciplinary action being taken against you.”
(20) This letter clearly was not a disciplinary charge. It referred only to “abusive behaviour” and “continuing negligence”, without further particulars and indicated that disciplinary action might follow.
(21) That meeting took place later that afternoon. The claimant was accompanied by Mr Jason Peebles, a senior technician in the Lisburn garage. Mr Hutchinson’s clear and repeated evidence to the tribunal was that he started this meeting by showing the claimant the relevant contractual provisions which contained the definition of gross misconduct and which defined it as including aggressive behaviour. The claimant stated that this did not happen at that meeting. Mr Peebles, who attended the hearing on foot of a Witness Attendance Order and who remains employed by the respondent company in the Lisburn garage, corroborated the claimant’s version of events. The tribunal therefore concludes that the claimant’s attention was not drawn, on 15 February, to the existence of the contractual definition of gross misconduct or to the possibility of dismissal.
(22) At this meeting with Mr Brian Hutchinson on 15 February, the claimant explained his version of events. In essence, he stated that Mr Perry had told him to finish the job - “or else” and that he had felt threatened. He had finished the job by about 5.20 pm but had complained both to Mr Perry in the showroom and then in the workshop to Mr McIlroy. He accepted that he had raised his voice but stated that he had not shouted.
(23) On 16 February, ie, the next day, Mr Brian Hutchinson wrote to the claimant in the following terms:-
“This letter invites you to attend a meeting this afternoon at 4.45 pm in my office to discuss your abusive behaviour on Friday, 12 February 2010, and your continuing negligence in carrying out your work. You have the right to ask a colleague to accompany you to a meeting. The meeting may result in disciplinary action being taken against you.”
(24) This letter was the closest the respondent came to formulating a disciplinary charge for the purposes of stage one of the statutory dismissal procedure provided for in the Employment (Northern Ireland) Order 2003. The claimant was handed this letter at approximately 12.30 pm by Mr McIlroy. The claimant was accompanied at the meeting by Mr Jason Peebles.
(25) The stage two meeting took place at about 4.45 pm on that day. There is again a conflict of evidence as to what occurred during that meeting. The claimant’s recollection was that Mr Hutchinson read out the contractual provisions relating to gross misconduct but the claimant was clear that Mr Hutchinson did not ask him any questions in relation to the allegations. The claimant stated Mr Hutchinson simply said that “I am going to have to let you go” and handed him an envelope containing the dismissal letter. Mr Peebles again confirmed the claimant’s version of events. He stated that Mr Hutchinson opened the meeting by referring to the contractual provisions, saying that he had investigated the matter thoroughly and that he had to dismiss the claimant. Mr Peebles confirmed that Mr Hutchinson had then handed the claimant an envelope. Mr Peebles could not recall any questions being put by Mr Hutchinson to the claimant.
(26) In contrast, Mr Hutchinson, in evidence, and in a written record compiled shortly after the meeting, stated that he had asked the claimant whether he had anything to add to what he had said previously.
(27) The tribunal found the claimant to be a credible witness. Despite being obviously nervous, he gave his evidence clearly and consistently. He readily accepted the points that were put to him which were not in his favour; eg, that he was responsible for an earlier incident where a lock nut on an alloy wheel had not been tightened, that at the later appeal meeting, Mr Ian Hutchinson had offered to reschedule the meeting to allow representation, that he had not put a specific allegation that Mr Perry had put his hands on him to restrain him from speaking to Mr McIlroy, etc. In addition, the tribunal concludes that Mr Peebles had no motive to misrepresent the events which occurred at the stage two meeting on 16 February or indeed to misrepresent any of his evidence. While the events had occurred more than six months before the date of the tribunal hearing, attending a meeting where a colleague was dismissed is not something Mr Peebles was likely to easily forget.
(28) The claimant’s evidence and Mr Peeble’s evidence is consistent and the tribunal prefers their version of events. The tribunal therefore concludes that the stage two meeting consisted only of a reading of the relevant parts of the employment contract, referring to gross misconduct, the articulation of a decision to dismiss and the handing over of the dismissal letter. The claimant was not invited to respond to any charge, however expressed, before the decision was made and delivered.
(29) Mr Brian Hutchinson gave evidence that he had, on Monday, 15 February, prepared two alternative letters. The first one was a dismissal letter and the second was a letter containing a final written warning. He stated that he had been “wavering” between a final written warning and a dismissal. However he had deleted the final written warning letter and had taken only the dismissal letter with him to the stage two meeting on 16 February. There was no evidence from Mr Hutchinson, the claimant or from Mr Peebles, that Mr Hutchinson had signed the dismissal letter at the meeting before handing it over. The tribunal therefore concludes that he already had a signed dismissal letter in his pocket when he went into the stage two meeting and that he had simply handed it over in an envelope. This can only indicate that the decision to dismiss had already been made before the stage two meeting commenced at 4.45 pm on 16 February.
(30) The dismissal letter read:-
“Further to our meeting yesterday afternoon, your aggressive behaviour towards Mr Jeff McIlroy and Mr Ken Perry on Friday, 12 February is a gross misconduct. Your gross negligence in carrying out your work is also a gross misconduct. This letter confirms that you are dismissed from Roadside Motors in accordance with our disciplinary procedure. You can appeal this decision in writing within the next five working days to Ian Hutchinson at this address.”
(31) On 23 February, the claimant appealed the decision to dismiss and asked for the following information to be taken into account:-
“Gross misconduct for aggressive behaviour by raising my voice in response to the Service Manager coming in at 4.45 pm and threatening me with “get the job done or else”.
“Gross misconduct for gross negligence in carrying out my work. In no occasion have I been called into the office for a warning or a meeting in relation to work negligence.”
(32) The appeal was to be heard by Mr Ian Hutchinson, Brian Hutchinson’s brother and the only other Director of the respondent company.
(33) Mr Ian Hutchinson wrote to the claimant on 25 February arranging the appeal hearing for Monday, 1 March, at the Lurgan garage. That letter and indeed the earlier letter of dismissal did not advise the claimant of his right to be accompanied by a Trade Union official or work colleague at the appeal hearing.
(34) The original date did not suit the claimant and the appeal hearing was rearranged to 5 March, still at the Lurgan garage. Mr Hutchinson’s evidence to the tribunal was that he had not spoken to anybody about the case before hearing the appeal. He wanted to apply a “fresh perspective”.
(35) The claimant attended on 5 March, accompanied by his sister-in-law who worked in the personnel department of another company. Mr Hutchinson did not allow the claimant’s sister-in-law to accompany the claimant into the appeal hearing. She was invited in at the end of the meeting when the claimant was invited to agree a summary of what had occurred during that meeting. Mr Hutchinson’s evidence was that the claimant’s sister-in-law could have heard everything that was going on during the appeal meeting from where she was sitting outside the office in which the hearing was taking place. The unchallenged evidence of the claimant was that his sister-in-law had been sitting in the showroom area to which customers had access and where a television was playing. It does not seem remotely likely that she could have heard much of what was going on during the appeal hearing.
(36) In any event, it is clear that Mr Hutchinson did offer to reschedule the appeal hearing to the Lisburn garage at a later date so that the claimant could have a work colleague present. He also suggested that the claimant could ask one of the employees in the Lurgan garage to attend the meeting in Lurgan but the claimant did not know anybody who worked there. The claimant agreed to the meeting going ahead on 5 March. At no stage prior to the commencement of the stage three meeting on 5 March was the claimant advised that he had the right to be accompanied by a Trade Union representative or a work colleague. If he had been, he could have arranged such representation and would not have been put in the position of having to decide whether to waive his right to representation or to further delay the appeal hearing.
(37) There is yet another dispute as to what happened in the course of this meeting. The claimant’s evidence was that Mr Hutchinson had referred to the contractual provisions relating to gross misconduct and had then asked for his explanation of the events on 12 February. The claimant stated that Mr Hutchinson had at some point cut him short by saying that he had known Mr McIlroy for many years and that Mr McIlroy would not have said what the claimant was then, at that point, alleging that he had said. The claimant’s sister-in-law was then invited into the room to witness the claimant agreeing to what had occurred during the course of that appeal meeting. The claimant said in evidence that he had agreed to what Mr Hutchinson had read out from Mr Hutchinson’s own handwritten notes as an accurate reflection of the meeting.
(38) Mr Hutchinson’s version of events was that he gave the claimant a full opportunity to explain what had happened on 12 February and to deal with the issues of negligence. He stated that the claimant and the claimant’s sister-in-law had agreed the record of the meeting.
(39) Mr Hutchinson had taken six short pages of handwritten notes of the meeting. It does not seem likely that either the claimant or his sister-in-law read and inspected those full notes before agreement and Mr Hutchinson’s evidence did not suggest that they had done so. It therefore seems clear that Mr Hutchinson summarised the proceedings orally and that that oral summary was agreed by the claimant. The tribunal therefore has no way of knowing what was agreed or not agreed with the claimant in respect of the stage three meeting. For example, the claimant denied in evidence that he had told Mr Hutchinson that he could not remember what he had said to Mr McIlroy on 12 February.
(40) In any event, the stage three meeting concluded with Mr Hutchinson saying that he would interview the other staff who were involved and that he would complete his investigation as soon as he could.
(41) He spoke to Sheelynne Duxbury on 9 March. He did not take a statement but recorded a summary of that discussion which indicated that Ms Duxbury had said:-
“She was in her office when at about 5.00 O’clock she overhead shouting from the service reception area situated at the other side of the showroom. I asked was it “don’t you ever threaten me again - no I didn’t - yes you did, etc”. Sheelynne said it was more than just that but could not tell me the exact details from what was said. Sheelynne continued that she went into the showroom to investigate. Sheelynne was going to intervene when Jeff came into the showroom and Brian and Jeff went into the workshop. I asked was it shouting or raised voices - Sheelynne confirmed that it was shouting. I asked who was shouting. Sheelynne said she was not sure who was shouting when she was in her office but when she went out to the showroom it was clearly Brian who was shouting.“
There is no mention in this record of the claimant swearing or using foul language. It is also of significance that she only observed the incident in the showroom.
(42) Mr Ian Hutchinson interviewed Mr Perry and Mr McIlroy on 12 March 2010. Mr Perry reiterated his version of the events which had taken place on 12 February. He stated that the claimant had used the “f-word” in the workshop. He did not allege that the claimant had sworn in the showroom area or in front of customers. The claimant “threw the brake disc across the floor”. A customer in the showroom area had said “someone is having a bad day” when the claimant confronted
Mr Perry. The claimant had shouted both at him and at Mr McIlroy. He stated that a “retaining clip” in relation to the front brakes had been damaged and that he needed to complete the work himself.
(43) Mr McIlroy stated that the claimant had come into the showroom and shouted at Mr Perry. He (Mr McIlroy) had moved in and the claimant had been aggressive towards him. He stated that the claimant had shouted at him and pointed his finger at him. There was no suggestion that the claimant had sworn at him or had sworn in the showroom.
(44) Mr Peebles was interviewed and he stated that Mr Perry had not threatened the claimant. “This could be taken the wrong way but he did not threaten.” It is not clear whether Mr Peebles was saying that Mr Perry did not say “finish the job - or else” or if he had said to Mr Hutchinson that Mr Perry had said that but not in a threatening way.
(45) Mr Hutchinson confirmed the dismissal in a letter of 16 March 2010 he stated:-
“Following our meeting on 5 March 2010 I have reviewed your case and find no reason to reverse the decision to dismiss you for gross misconduct for aggressive behaviour towards Mr McIlroy and Mr Perry. In relation to negligence in carrying out your work I have not had time to investigate this matter fully. As such, I have retracted this element of the disciplinary action. This does not however change the overall outcome of the disciplinary action given my decision above.”
(46) In his evidence to the tribunal, where Mr Hutchinson was explaining his reasoning in reaching his decision to confirm the dismissal, he placed some emphasis on the “foul language” used by the claimant. It was that “foul language”, coupled with the aggression shown by the claimant in the workshop and in the showroom and in the throwing of the disc which led him to confirm the dismissal. He also placed emphasis on the time span over which the aggression was shown.
It is common case that the incident had three phases overall. Firstly, there were the series of discussions, to use a neutral term, between the claimant and Mr Perry in the workshop. Secondly, there was the confrontation between the claimant and Mr Perry and between the claimant and Mr McIlroy in the showroom area and that confrontation continued between Mr McIlroy and the claimant as they left the showroom area and went back to the workshop area. Thirdly, there was an incident in which the claimant, having got into his car to go home, went back into the showroom to ask Mr McIlroy had he said something, which the claimant had not initially heard but had been told about by Nathan Crosby a colleague, to the effect that he was going to get rid of him. Mr McIlroy denied that he had said any such thing. It is common case that the claimant accepted that denial. In relation to this third phase of the incident, the statement from Mr McIlroy of 12 March, which was before Mr Ian Hutchinson stated:-
“I asked if Brian came back into Jeff’s office. Jeff said he did. Brian said to Jeff “what did you say to me - did you say I’m on my way out?” Jeff said “Brian, there’s something wrong with you, there’s something more wrong with you than I think is wrong with you because I could not get a discussion with you to even say that - I never uttered those words.” Brian then said “oh right right - that’s okay then, maybe I took it up wrong”.
Brian then left Jeff’s office. It does not appear that there was any evidence before either Mr Brian Hutchinson or Mr Ian Hutchinson that this third phase of the overall incident involved shouting, aggression or swearing, or that it involved anything more than a request by the claimant for clarification.
RELEVANT LAW - UNFAIR DISMISSAL
(47) Article 130(A) of the 1996 Order provides:-
“(1) An employee who was dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) one of the procedures set out in Part One of Schedule One 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 procedures is wholly or mainly attributable to the failure of 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.”
(48) The standard dismissal procedure is set out in full in Schedule One to the 2003 Order. This provides for a three stage procedure. The first stage is a written statement of the circumstances which led the employer to contemplate dismissing the employee; that written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter. The second stage is a meeting in which the employer informs the employee of the decision and notifies the employee or his/her right to appeal against the decision. The third stage is the appeal and notification by the employer to the employee of the decision on appeal.
(49) Article 130 of the 1996 Order provides:-
“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.
………..….
(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 the circumstances (including the size and administrative resources of the employers 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.”
(50) The burden of proof is on the employer in the first instance to establish the reason for the dismissal and, in this case, to demonstrate that it was a reason relating to the conduct of the employee.
(51) In Dobbin v Citybus Limited [2008] NICA 42, the Court of Appeal stated:-
“49 - The correct approach to [equivalent GB legislation] was settled in two principal cases, British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Limited v Jones [1983] ICR 17 - and explained and refined principally in the judgements of Mummery L J in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden, reported at [2000] ICR 1283 and J Sainsbury v Hitt [2003] ICR 113.
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 authorities have established that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-
(1) the starting point should always be the words of [equivalent GB legislation] themselves;
(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employers conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of an 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, but not all, cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view and another quite reasonably take another;
(5) the function of an 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.”
(52) To that may be added the remarks of Arnold J in British Home 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 in those grounds, had carried out as much investigation into the matters 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 example 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 the 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.”
(53) The Court of Appeal reviewed these authorities and approved them in the case of Rogan v South Eastern Health and Social Care Trust NICA 2010 where it held:-
“21 - The test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in this conduct cases it is generally helpful to follow the remarks of Arnold J in British Homes Stores. It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”
(54) The Court of Appeal in Andrew James Taylor v OCS Group Limited [2006] EWCA CIV 702 stated:-
“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that [equivalent GB legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal as they found it to be. The two impact on each other and the Employment Tribunals task is to determine 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.”
(55) It is therefore not part of the function of the tribunal to re-run the disciplinary process or to substitute its own view as to the weight which should have been accorded to the evidence which emerged in the course of that process. The tribunal, in respect of unfair dismissal, has a limited jurisdiction and is restricted to considering whether the employer acted reasonably, in all the circumstances of the case, by applying the statutory test, as discussed in the decision set out above.
(56) The 1996 Order provides that a tribunal may make deductions from both the basic and compensatory award in respect of contributory misconduct on the part of a claimant. In Nelson v BBC (No 2) [1979] IRLR 346, the Court of Appeal said that three factors must be satisfied if a tribunal is to make a deduction in these circumstances. The relevant conduct must be culpable or blameworthy. It must have actually caused or contributed to the dismissal. It must be just and equitable to reduce the award by the proportions specified.
DECISION - UNFAIR DISMISSAL
Automatically Unfair Dismissal
(57) The respondent failed to properly fulfil his obligations in respect of the statutory dismissal procedures provided for in the 2003 Order.
The first meeting between Brian Hutchinson and the claimant is best described as an investigation meeting. The letter of invitation referred only to the possibility of disciplinary action. The letter of invitation to the second meeting, which occurred on the 16 February, is the stage one invitation. It referred only to “your abusive behaviour on Friday, 12 February 2010 and your continuing negligence in carrying out your work”. No mention was made in that letter of swearing and any details of the allegations made against the claimant by Mr Perry and Mr McIlroy were absent. The reference to “continuing negligence” is entirely unexplained in that letter. The standard dismissal procedure requires the employer at stage one to “set out in writing the employees alleged conduct”. The LRA Code of Practice at paragraph 14, provides:-
“The first step in any formal process is to let employees know in writing what it is that they are alleged to have done wrong. The letter or note setting out the allegation can also be used to provide information which explains the basis for making the allegation. If information on the basis of the allegation is not provided in writing, this should be conveyed orally to the employee before any meeting takes place.”
While the details of the alleged negligence (which were later dropped at the appeal stage) had been clarified in the earlier investigation meeting on 15 February, the allegation of swearing and the full details of the allegation in relation to aggressive behaviour, ie, firstly the incident in the workshop with Mr Perry, secondly the incident in the showroom area and in the workshop with Mr Perry and Mr McIlroy and thirdly the last incident in the showroom area with Mr McIlroy were not clarified at that meeting or in that letter. In Alexander v Brigden Enterprises [2006] ICR 1277 the EAT referred to stage one of the statutory process and stated:-
“At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at Step One the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct and issue, such as fighting, insubordination or dishonesty.”
(58) In Zimmer Limited v Brezan UKEAT/0294/08/ZT - the EAT stated:-
“23 - Unless the employee is enabled to understand from the step one letter that he is at risk of dismissal, in our judgement the purpose of the step one letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer or, at least, in a dismissal case, that dismissal is in the mind of the employer, so that he knows the potential extent of what it is that he may be facing when, armed with the information given to him by the Step One letter, he goes to the Step Two meeting.”
(59) The tribunal accepts the evidence of the claimant and of Mr Peebles that the contractual provisions relating to gross misconduct and the definition of gross misconduct were not discussed at the investigation meeting on 15 February and were first raised at the stage two meeting on 16 February. The tribunal is therefore satisfied that, while some of the details of the disciplinary charge had been adequately clarified for the claimant in a combination of the investigation meeting on 15 February and the stage one letter of 16 February, not every part of the disciplinary charge had been clarified. It is reasonably clear that the allegations have been put “in broad terms” to the claimant. However it was not made plain to him at stage one that he was at risk of dismissal. To that extent, the respondent failed to properly fulfil its obligations.
The stage two meeting was wholly defective. The tribunal again accepts the evidence of the claimant and of Mr Peebles. No opportunity was given, before the decision was taken to dismiss, for the claimant to respond to the disciplinary charge. The stage two meeting consisted only of the reference to the contractual provisions, the oral communication of the decision to dismiss and the handing over of the pre-prepared dismissal letter.
The claimant was not advised of his statutory right to be accompanied at the appeal hearing by a Trade Union representative or work colleague. The LRA Code makes it plain at paragraph 49 that:-
“The employer should contact the employee with appeal arrangements as soon as possible, and inform him/her of his/her statutory right to be accompanied at the appeal meeting.”
It is clear that the claimant on 5 March, when faced with the prospect of further delay, waived that statutory right. The possible dismissal of an employee with 37 years service and a clear record is no small matter. A reasonable employer would have ensured firstly that the claimant was properly notified of his right to be accompanied and secondly would not have accepted that waiver in those circumstances. However, given the waiver on the part of the claimant, this issue, on its own, would not have been of major significance.
(60) The main issues here are the failure at stage one to indicate to the claimant that he was at risk of dismissal and a complete failure to have a proper disciplinary hearing at stage two. The latter point means that the dismissal was therefore automatically unfair.
OTHER PROCEDURAL ISSUES
(61) Mr Ian Hutchinson, when affirming the dismissal on appeal relied at least in part on his belief that the claimant had used “foul language”. It would appear that this was based on the allegation by Mr Perry that the claimant had used the “f-“ word several times in the workshop. There was no evidence before Mr Brian Hutchinson or Mr Ian Hutchinson that “foul language” was used by the claimant in the showroom, at any stage to Mr McIlroy, or in front of customers. The allegation of foul language was never put to the claimant and he was not given an opportunity to respond to that issue.
(62) The statements taken from Mr Perry and Mr McIlroy and Mr Peebles and the record of Mr Ian Hutchinson’s discussion with Ms Duxbury were never put to the claimant for comment. He was never given an opportunity to respond to the specific allegations made against him in those statements. As Mr Cochlane pointed out on behalf of the claimant, the EAT in Bently Engineering Company Limited v Mistry [1978] IRLR 436 stated:-
“On the other hand, it is clear that in the matter of this kind, natural justice does require not merely that a man should have a chance to state his own case in detail; he must know in one way or another sufficiently what has been said against him. If he does not know sufficiently what has been said against him, he cannot properly put forward his own case. It may be, according to the facts, that what is said against him can be communicated to him in writing in a written statement, or it may be that it is sufficient if he hears what the other protagonist is saying, or it may be that in an appropriate case for matters which have been said by others to be put orally and sufficient detail is an adequate satisfaction of the requirements of natural justice. As Bristow J said, it is all a question of degree.”
(63) The EAT in the case of Louies v Coventry Hood and Seating Limited [1980] IRLR 324 stated that:-
“Where the essence of the case against an employee is contained in written statements by witnesses, it is contrary to the rules of natural justice and prima facie unfair for an employer to refuse to let the employee see those statements. Thus where, in deciding to dismiss, an employer relies almost entirely on such written statements, it will be very rare for the procedures to be fair if the employee is not allowed to see the statements, or at least to be told very clearly exactly what is in them.”
(64) In the case of Lansing Linde Severnside Limited v Gibbs EAT Transcript 20 March 2003, the EAT held the simple fact of non-disclosure of witness statements or of notes of interviews does not in itself make a dismissal procedure unfair. The tribunal, in such circumstances, has to consider whether or not the non-disclosure had any prejudicial effect on the ability of the employee to present their case.
(65) In this case, the claimant was asked during the meeting on 15 February and in the meeting of 5 March to explain what had happened on the 12 February. He was not given sight of the statements and the statements were not recounted to him in any detail. He was not given the opportunity to respond to the specific allegation of foul language which weighed upon Mr Ian Hutchinson’s mind and he was not given the opportunity to submit that the “aggression” had not all been one way. The tribunal concludes that this failure did, on the balance of probabilities have a prejudicial effect on the claimant’s ability to defend himself.
(66) The initial decision to dismiss the claimant appears to have been reached, at the latest, by the afternoon of 15 February. The evidence of Mr Brian Hutchinson was that he had prepared that letter on the 15 February. The matter moved from investigation to a decision to dismiss within 24 hours.
(67) Defects in the initial disciplinary procedure can be remedied on appeal. However at the appeal stage, the claimant again was not told that it was alleged that he had used foul language or that this was one factor, and not a trivial factor, to be considered amongst other factors. He was again not given an opportunity to respond to the specific allegations contained within the various statements.
(68) The tribunal therefore concludes that the dismissal, leaving aside the issue of automatic unfairness and the issue of substantive unfairness is procedurally unfair. The tribunal, in doing so, is conscious of the fact that it should consider procedural and substantive issues together when ultimately reaching the decision whether the dismissal is overall fair or unfair but at this stage in the decision-making process the tribunal is looking solely at procedural issues.
(69) The tribunal is not in a position to say that, if the disciplinary and appeal processes had been fairly conducted, the claimant would have been dismissed anyway. The onus is on the respondent to establish that fact and the respondent has failed to do so. Mr Brian Hutchinson’s evidence was clear in that he had been “wavering” between a final written warning and dismissal. It is therefore difficult for the tribunal to reach a conclusion that the procedural defects and the limitations placed upon the claimant in presenting a defence would have had no effect on the overall result.
UNFAIR DISMISSAL - SUBSTANTIVE UNFAIRNESS
(70) This was an employee of 37 years service and a clear disciplinary record.
(71) This was a one-off incident. The allegations of negligence were dropped at the appeal stage and were ultimately not relied upon by the respondent to justify the dismissal.
(72) Mr Brian Hutchinson stated in evidence that he had considered the claimant’s long service and his clear disciplinary record. However he was also adamant that the dismissal was automatic because he had found that there had been aggressive behaviour and aggressive behaviour was defined in the disciplinary procedures of the respondent company as gross misconduct.
(73) If Mr Hutchinson had believed that the dismissal was in fact automatic, once he reached those findings of fact, and if he therefore had no choice, it is difficult to see what, if any, consideration he or indeed Mr Ian Hutchinson, gave to the claimant’s long service and clear record.
(74) In Taylor v Parsons Peebles [1991] IRLR 119, the EAT were considering the case of an employee who had been dismissed after being in a fight with another employee. The tribunal hearing the case at first instance had taken into account that the respondent company’s disciplinary policy provided that it was automatic to dismiss any employee who deliberately struck another employee. The EAT stated:-
“The tribunal have expressly stated they were satisfied that the policy of the respondents was that in such circumstances the only possible penalty was dismissal and that this penalty was justly enforced when they dismissed both men. So expressed, this does not in our view state the proper test. The proper test is not what the policy of the respondent employers was, but what the reaction of a reasonable employer would have been in the circumstances. The reaction would have taken into account the long period of service and good conduct which the appellant was in a position to claim. It is not to the point that the employers Code of Disciplinary Conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed. Such a provision, no matter how positively expressed, must always be considered in the light of how it would be applied by a reasonable employer having regard to the circumstances of equity and the substantial merits of the case.”
The EAT continued:-
“This is not to say that the conduct can be condoned but to apply a rigid sanction of automatic dismissal in all circumstances is not in our view what a reasonable employer could have done.”
(75) The tribunal therefore concludes that the employer had effectively, and through its own disciplinary rules, fettered its discretion, and it did not in fact consider the claimant’s long service and clear disciplinary record.
(76) It appears to be common case that during the third phase of the incident, ie, when the claimant returned to the showroom from his car and spoke again to Mr McIlroy, there was no swearing and that the claimant instantly accepted Mr McIlroy’s denial. There does not appear to be an allegation of aggressive behaviour in this third phase. However Mr Ian Hutchinson made it clear that he took this phase into account in determining that there had been aggressive behaviour on the part of the claimant.
FINDINGS OF FACT - CONTRIBUTORY MISCONDUCT
(77) As indicated above, the tribunal is conscious that it has to adopt a different approach when determining this particular issue.
(78) The tribunal concludes, on the evidence before it, that the claimant did lose his temper on 12 February 2010 and that he did raise his voice in the workshop and in the showroom. He did “have it out” with Mr Perry and Mr McIlroy in the first and second phases of the incident.
(79) He could have, if he had chosen to do so, dealt with this matter in a different way. He could simply have gone home and, when tempers had cooled, submitted a written grievance to his employer.
(80) As against that, the claimant clearly felt under pressure from Mr Perry to finish a job shortly before clocking off time on a Friday afternoon. He had been particularly agitated because his earlier diagnosis, on Wednesday 10 February, of front brake problems had been ignored and that this had contributed to the delay. The tribunal has concluded, on the balance of probabilities, that the claimant did use reasonably industrial language in the workshop to Mr Perry but there appears to be no evidence that he used such language in the showroom, to Mr McIlroy or in front of customers. The evidence from Mr Peebles and from Mr McGurnaghan was that rows were not uncommon between the service manager, Mr Perry, and technicians and, in the collective experience of this tribunal, the use of such language in a workshop, or indeed in many industrial and non-industrial working environments, is not in itself generally regarded as a hanging matter.
(81) The claimant’s actions, nevertheless, amounted to misconduct which while falling very far short of the standard of misconduct which would have justified summary dismissal or dismissal on notice, in all the circumstances of this case, did contribute to his dismissal and was in itself culpable. The tribunal therefore concludes that it would be just and equitable, in all the circumstances of this case to reduce the compensatory award and the basic award by 15%.
COMPENSATION
(82) The tribunal fixes the appropriate uplift in respect of the compensatory award for the failure to complete the statutory dismissal procedure at 15%. The actions of the employer in this respect were careless but not deliberate or malicious.
(83) BASIC AWARD
£348.75 x 1.5 x 16 = £8,370.00
£348.75 x 1 x 4 = £1,395.00
Less 15% contributory conduct @ £1,464.75 = £8,300.25
Loss of Statutory Rights = £ 300.00
(84) COMPENSATORY AWARD
29 weeks to date of hearing
29 x 298.25 = £8,649.25
The tribunal concludes on the balance of probabilities, that the claimant could reasonably expect to obtain alternative employment within one year from the date of the hearing. It is satisfied on the detailed evidence presented on his behalf that he has made substantial efforts and is continuing to make substantial efforts to find such alternative employment.
52 x 298.25 = £15,509.00
Running Total Compensatory Award = £24,158.25
Statutory Uplift of 15% @ £3,623.73
Running Total = £27,781.98
Reduction for Contributory Misconduct @ 15% = £ 4,167.29
Total Compensatory Award = £23,614.69
Basic Award = £ 8,300.25
Loss of Statutory Rights = £ 300.00
Compensatory Award = £23,614.69
TOTAL AWARD = £32,214.94
(85) The tribunal has concluded, in the balance of probabilities, that the claimant was sent a standard statement of terms and conditions shortly after the respondent acquired the business and the claim in that respect is dismissed.
(86) The attention of the parties is drawn to the recoupment notice attached here to which forms part of the decision. The claimant claimed Jobseekers Allowance from
1 March 2010. The prescribed element to the date of the award is £10,438.75. The amount by which the total award exceeds the prescribed element is £21,776.19.
(87) This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 2, 3 September 2010, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 1130/10
CLAIMANT: Brian George Coburn
RESPONDENT: Roadside Motors (Moneymore) Limited
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
£32,214.94 |
|
(b) Prescribed element |
£10,438.75 |
|
(c) Period to which (b) relates: |
1 March 2010 – 3 September 2010 |
|
(d) Excess of (a) over (b) |
£21,776.19 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.