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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Curry v Northern Ireland Housing Execu... [2010] NIIT 19_10IT (22 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/19_10IT.html
Cite as: [2010] NIIT 19_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 19/10
CLAIMANT: Dermot Curry
RESPONDENT: Northern Ireland Housing Executive
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr P Cross
Panel Members: Mr M Grant
Mr W Irwin
Appearances:
The claimant was represented by his brother Mr M. Curry.
The respondent was represented by Mr C. Hamill, Barrister-at- Law, instructed by the NIHE Legal Department.
Findings of Fact
1. The claimant was employed by the respondent as one of its electricians whose duties included the periodic inspection of the respondent’s housing stock; to ensure that the houses were in a safe electrical state. The claimant worked on his own visiting the respondent’s houses. The claimant had been employed by the respondent from August 2005, and apart from a period of nine months, ending on 30 November 2008, when he was on secondment to the Maintenance Policy Unit in the Housing Centre, he worked on the inspection of the various houses that were listed for his inspection.
2. On 19 December 2008, Mr Rice, who was the claimant’s line manager, was called out to an emergency visit to a property which had recently been inspected by the claimant. A number of defects were noticed in this property, 22 Ludlow Square, which caused great concern to Mr Rice. Consequently it was decided by the respondents to inspect all the houses which had been inspected by the claimant, since he returned to the work of inspecting houses on 1 December 2008. Further discrepancies were discovered on this inspection. These were discussed at some length at the tribunal hearing and involve incorrect readings taken by the claimant from his testing equipment; fuses welded together, unauthorised extension of electric supply to sheds in the gardens and additions to the equipment in the houses, the wiring of which was not approved. All these items could result in serious danger to the occupants of the houses. The discovery of this alleged failure on the part of the claimant lead to his suspension and to a subsequent disciplinary hearing, after which he was summarily dismissed on the grounds of gross misconduct. The claimant appealed this decision to dismiss him, to the Northern Ireland Housing Executive (NIHE), Joint Appeal Board. This appeal was unsuccessful.
3. At the disciplinary hearing reference was made to 32 houses having been re-inspected by the respondents and various faults having been found. The initial re-inspection had covered 10 houses and the claimant had been invited to see those houses. He had indeed returned to some of them to inspect the defects to the electrical systems, that the respondents claimed that he should have spotted. After the disciplinary investigation the respondents called the claimant to a disciplinary meeting at which he faced three charges. The third of these was that he failed to carry out the required standard of testing in ten named houses, thus allowing the possibility of a serious health and safety risk to the tenants. This charge was upheld by the disciplinary hearing.
4. A further charge of being in breach of
Paragraph 1.1 of the NIHE code of conduct, namely to give the highest possible
standard of service to the public, was not upheld by the disciplinary hearing
as the panel was undecided on this charge.
5. The third allegation against the claimant
was that between 1 December 2008 and 27 January 2009, he failed to carry out 32
health and safety electrical inspections on houses, including the ten houses
mentioned in paragraph 3 above. The disciplinary panel concluded that the
claimant was guilty of this charge.
6. The panel having found the claimant guilty of two allegations, out of the three that were put to him, concluded that the conduct of the claimant amounted to gross misconduct and dismissed the claimant as at 30 June 2009, with four weeks pay in lieu of notice.
7. The claimant appealed against this decision and the appeal was heard by the Joint Appeals Board of NIHE on 23 November 2009. The appeal upheld the decision to dismiss the claimant on the ground that he had failed to carry out the required standard of testing to the 10 named houses. The appeal board did not support the decision of the disciplinary hearing, that the claimant was guilty in respect of the other 22 houses, which were added to the charge sheet as the inspections by the respondent continued. The panel considered that it was unfair on the claimant that he should face such a large number of charges, on a growing list of houses that were being inspected, during the time that the disciplinary investigation was in progress.
8. The result of this was that of the three charges initially put to the claimant at the disciplinary hearing, two were dismissed during either the first hearing or at the appeal. The dismissal was upheld by the Joint Appeals Board on the ground that the claimant, in relation to the ten named houses only, had failed in a number of ways to carry out his inspection work in a satisfactory manner. The Appeal Board summed up its findings by stating; “that the level of work performance was sufficiently low, as to be potentially hazardous to both tenants and NIHE alike”. Consequently the appeal was dismissed and the dismissal of the claimant was upheld.
9. Various other matters were introduced to the tribunal as factual matters, which should in the view of the claimant, have led to his being given a lesser penalty than that of dismissal. The more important of these were as follows. That some of the re-inspection work on houses that had been originally inspected by the claimant had been carried out by a Mr McElhill, whose test readings and measurements were themselves subject to criticism from the respondent. However the respondent’s disciplinary hearing stated, that “As test clockings were only a part of the overall health and safety procedure, it was irrelevant to the case as to whether any set of readings proved or disproved the allegations, as they were only an indicator of possible problems, not the deciding factor”.
10. Another matter which was put forward by the claimant, to illustrate why he considered dismissal to be too severe a penalty in this case, was that previously an electrician who had been doing the same work as the claimant, made mistakes with some of his readings and had been allowed to resign from the respondent’s employment. However the tribunal found as a fact, that any shortcomings of that employee, or other employees, who might have been treated differently, were possibly guilty of offences in connection with taking readings with their issued equipment. The claimant was also charged with making incorrect readings and as a result his reading equipment was checked by the respondent and found to be in proper working order. The tribunal refer again to the report of the disciplinary hearing quoted above; that test clockings were only part of the procedure. Although the failure to take proper readings is a serious matter, the tribunal find as a fact, that the disciplinary panel was satisfied that the two main allegations relating to inspections not being carried out to the required standard were proven.
The Law
11. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter called “the 1996 Order”) an employee has a right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order states, that the onus is on the employer to show that the reason (or the principal reason if there are more than one reason), for the dismissal falls within Article 130(2), or is for some other substantial reason. In this case the respondent claims that the reason for the dismissal is the conduct of the claimant. This reason falls within Article 130(2)(b). When the respondent has discharged this requirement, then under Article 130(4) “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether 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.”
The burden of proof in this regard is neutral and the tribunal has to consider all the evidence of the parties, to ascertain whether the disciplinary enquires and hearings were conducted in a fair manner toward the claimant.
12. The leading case, which assists the tribunal
in cases of this nature, is British Home Stores v Burchell 1978 [IRLR] 379,
in which the EAT laid down the test of fairness in a case of investigation into
the employee’s conduct. This test, which has been followed by courts and tribunals,
lays down certain guidelines regarding the employer’s belief at the time of the
dismissal. The employer, in a case of this type, must show to the tribunal,
that he “entertained a reasonable suspicion, amounting to a belief in the guilt
of the employee of that misconduct at that time”. Arnold J states in his
judgment in the Burchell case, after the above quoted words:-
“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, 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.”
13. The Burchell and other decisions make it very
clear to tribunals that they must not impose their own decision on the parties,
in place of a decision that has been reached by an employer who has observed
the guidelines stated above.
14. Once the tribunal has made the decision, that the process of the enquiry and disciplinary and appeal hearings have been conducted fairly, it must decide whether the decision of the employer, to dismiss the employee is within a band of reasonable responses that a reasonable employer might be expected to adopt, if faced with a disciplinary problem such as the one before this tribunal
Decision of the Tribunal
15. The tribunal holds that that the respondent did hold a belief that the claimant had failed to carry out the required checks to the ten named houses and that the respondent believed that that could have had very serious results for the tenants and the respondent, as landlord, on a health and safety basis. The tribunal hold that the claimant was given an opportunity to re-inspect the houses concerned and that all his suggestions, as to how the problems arose, for instance the accuracy of his testing equipment, were investigated in a fair way. The respondents carried out a proper investigation and disciplinary hearing, at which one of the charges was not upheld by the disciplinary panel. The claimant then appealed against his dismissal and a further enquiry upheld the disciplinary hearing, reiterating the seriousness of the charges against the claimant but not proceeding on the basis of the greater number of houses which were brought into the enquiry.
16.
The claimant made much of the
unfairness of having to deal with 32 house inspections.
17. The respondent did not, before the tribunal, rely on the 32 houses but relied on the Joint Appeals note of caution, that the best number to consider was the ten, which the claimant had had the opportunity of inspecting.
18. The claimant also complained that some of the information concerning the ten inspections was sent to him late in the disciplinary process. However the claimant did not complain about this at the initial hearing or at the appeal. The decision of the disciplinary hearing was made on 25 June 2009, but a copy was not sent to the claimant until 13 December that year, which seems to the tribunal, to be rather a long time after the conclusion of the hearing, indeed it was only obtained by the claimant when he instituted an application under the freedom of information process. This is, in the view of the tribunal, unfair on the claimant. The tribunal, despite this shortcoming on the part of the respondent, holds that nothing sinister is involved in this as the claimant was sent details, of what the decision stated, in the letter of dismissal of 29 June.
19. The claimant stated that not all the points that were identified by Mr Rice as defects in the claimant’s inspections of the ten houses were put to the claimant at the investigation meetings, to allow him to properly re-inspect. The tribunal find however that this complaint was not made at the disciplinary or appeal hearings. Furthermore the respondent carried out a sufficiently thorough investigation into the claimant’s failure to properly inspect the ten houses and the claimant did have proper and adequate opportunity to recheck these houses and was given details of his alleged failures, such as failure to remove the covers on control boxes. The tribunal hold that the investigation and disciplinary process carried out by the respondent was correctly managed and fair to the claimant. Thus the tribunal, as explained above, under the rule in British Home Stores v Burchell, is precluded from investigating further, save to consider whether the decision of the respondent to dismiss the claimant came within the band of reasonable responses that an employer should consider when faced with an employee found guilty of such conduct.
20. The tribunal having listened to the evidence and read the decisions of the disciplinary hearing and the appeal has no doubt that the decision to dismiss was within such band. The danger posed to tenants and others in the houses that were not properly inspected, was such that this tribunal holds that the dismissal was a fair punishment. This is all the more apparent when one considers the fact, that the claimant and his colleagues doing this work, were trusted to work to a great extent unsupervised. Accordingly the dismissal of the claimant was fair.
Chairman:
Date and place of hearing: 26-29 April 2010, Belfast.
Date decision recorded in register and issued to parties: