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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Conville v Southcity Resource and Develop... [2010] NIIT 6197_09IT (18 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6197_09IT.html
Cite as: [2010] NIIT 6197_9IT, [2010] NIIT 6197_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6197/09
CLAIMANT: William Conville
RESPONDENT: Southcity Resource and Development Centre
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and awards him £6,444.84.
Constitution of Tribunal:
Chairman: Mr Wimpress
Panel Members: Mrs A Boreland
Mr J E Martin
Appearances:
The claimant was unrepresented and appeared on his own behalf
The respondent was represented by Mr Bob Stoker
Sources of Evidence
1. The tribunal received a small bundle of relevant documents from each party and heard oral evidence from the claimant, Mrs Caroline Lambe, Mr Roy Wallace and Ms Paula Bradshaw.
The Claim and the Response
2. The proceedings arose from the dismissal of the claimant by the respondent from his post as a Youth Worker. In a concise and well presented claim form the claimant alleged that the respondent failed to comply with Step 1 of the statutory disciplinary procedure by failing to inform him that he was at risk of dismissal in the Step 1 letter. The claimant also complained that he was not allowed to present his case on appeal or introduce evidence about the allegations against him. In a commendably detailed response, the respondent provided a full history of the matter, asserted that the claimant had been dismissed for gross misconduct, contended that the statutory procedures had been fully complied with and refuted the claim of unfair dismissal.
The Facts
3. The claimant's date of birth is 30 January 1980. The claimant was employed by the respondent from 5 March 2007 to 27 March 2009 when he was dismissed. The respondent is a voluntary organisation which engages in outreach work among young people and is run by a small committee. The claimant was one of three Youth Workers employed on the Blackstaff Youth Initiative on a funded fixed term contract of 3 years duration which was due to terminate on 28 February 2010 with the possibility of renewal subject to performance and the continued availability of funding. The claimant’s contract of employment made provision for a twenty five hour working week with a starting salary of £13,441.06 per annum on a pro rata basis with provision for an annual incremental rise. At the time of his dismissal, the claimant was receiving £182.00 per week gross and £161.69 net.
4. Following an Executive Committee meeting on 28 January 2009 the respondent's Development Manager, Mr Bob Stoker, sought to arrange a meeting with the claimant in order to discuss concerns that had arisen in respect of the claimant's conduct and performance at work. Mr. Stoker approached the claimant on 29 January 2009 at 9.15 am and asked him to meet with him at 10.00 am. The claimant replied that he another meeting arranged at that time and Mr Stoker told him that he would put their meeting back to 10.30 am. The claimant said that this was also unsuitable as he had worked all his hours for that week and was not doing any extra. Mr Stoker did not engage in any further discussion with the claimant but told the claimant that he expected him to attend at 10.30. The claimant failed to attend the meeting and commenced a period of self certified sick leave.
5. On 19 February 2009 an incident occurred at the Centre which resulted in disciplinary action being taken against the claimant. The central facts were not in dispute. Mr Stoker discovered two desks which were blocking the downstairs reception area in the Centre and asked the claimant to move them upstairs. The claimant refused and as a result Mr Stoker suspended him on full pay. The claimant produced a letter from Dr B J Toal at the tribunal hearing which stated that the claimant suffered from chronic anterior left knee pain despite surgery in December 2002 and that he had recurring locking at the joint.
6. The respondent’s Management Committee considered the matter at a meeting on 20 February 2009 and determined that there should be an investigation. The Committee appointed two of its members, Mr Roy Wallace and Ms Caroline Lambe, to investigate the matter. At the same time the committee determined that certain members should deal with any disciplinary hearing that might ensue with others being held back to deal with any appeal.
7. The claimant was advised of the investigation by Mr Stoker by letter dated 23 February 2009. On the same date Mr Wallace wrote to the claimant and invited him to attend a disciplinary interview on Friday 27 February 2009 at the Centre. This letter is important and read as follows:
“Dear William
Invitation to attend a Disciplinary Interview
You are requested to attend a Disciplinary Interview in relation to alleged misconduct committed between 28th November 2008 and 19th February 2009.
Time: 1.00 P.M.
Date: Friday 27th February 2009.
Location: Southcity Resource and Development Centre, 2 Maldon Street, Belfast.
I have attached an Evidence Matrix setting out the allegations of misconduct against you and associated evidence that is being considered as part of the statutory dismissal and disciplinary procedure, which will be referred to during the course of this interview.
I should be grateful if you would inform me if the time is unsuitable in order that an alternative time can be arranged.
Please note that you are entitled to be accompanied by another work colleague or your trade-union representative.
Yours sincerely,”
8. The Evidence Matrix set out the allegations against the claimant in detail together with copies of the supporting evidence which was mainly in the form of statements. The Evidence Matrix also made reference to the respondent's Disciplinary and Grievance Policy and Procedure which was enclosed with it. The Evidence Matrix contained seven separate allegations as follows:
1. Gross Misconduct - Refusal to carry out a reasonable work instruction.
The failure to comply with a request made at a staff meeting on 24 November 2008 to provide a full list of those who had undergone training through the Blackstaff Youth Initiative.
2. Gross Misconduct - Refusal to carry out a reasonable work instruction and Major Misconduct - Insubordination.
The failure to attend a meeting with Mr Stoker on 30 January 2009.
3. Major Misconduct - Insubordination.
Sending misleading and inflammatory letters to parents in relation to the use of a minibus for attending a football league match.
4. Major Misconduct - Entering an unauthorised area
Entering an unauthorised area in the Centre on 18 February 2009.
5. Gross Misconduct - Refusal to carry out a reasonable work instruction and Major Misconduct - Insubordination.
Refusing an instruction to move a desk at the Centre on 19 February 2009.
6. Gross Misconduct - Refusal to carry out a reasonable work instruction and Major Misconduct - Insubordination.
The failure to respond to memos dated 26 January 2009 and 11 February 2009 requesting ideas for the upcoming summer scheme.
7. Gross Misconduct - Refusal to carry out a reasonable work instruction and Major Misconduct - Insubordination.
The failure to respond to a memo dated 2 February 2009 from the Treasurer requesting a copy of all income and expenditure relating to the running of the tuck shop.
9. The Disciplinary and Grievance Policy and Procedure included examples of major and gross misconduct. In relation to gross misconduct it stated as follows:
“If you have committed an offence, which is regarded as gross misconduct and management is satisfied after investigation and a disciplinary hearing that it has occurred, you will be dismissed summarily, ie without wages in lieu of notice.”
10. The claimant wrote to the respondent on 26 February 2009 and requested a postponement of the disciplinary interview in order that he could obtain trade union representation. Mr Wallace replied on 27 February 2009 and granted the request. Mr Wallace also advised the claimant that the interview/hearing would be rescheduled on 11 March 2009. The disciplinary interview was subsequently postponed to 19 March 2009 at the request of the claimant's trade union representative. In granting this further request for a postponement, Mr Wallace indicated that the panel would not be prepared to grant any further postponements as this was the third time on which the interview had been scheduled and that if the claimant failed to attend on this occasion the panel would consider the evidence in his absence. Mr Wallace also complained to the claimant's trade union, NIPSA, about the delay and advised the claimant's representative Ms Sally Greene, of the new date. In the event neither the claimant nor his trade union representative attended the rescheduled disciplinary interview on 19 February 2009. Mr Wallace wrote to the claimant on 20 March 2009 and advised that he would proceed to consider all of the evidence presented to date and would prepare a report on his findings for the Southcity Executive Committee's consideration.
11. Mr Wallace and Ms Lambe compiled what was termed “an investigatory report” but which in reality was their findings in respect of the disciplinary charges against the claimant. In the report they set out the background to the matter, the process to date, the evidence on which the seven charges were based and the disciplinary panel’s conclusion in relation to each charge. The report found that each of the charges had been made out and commented as to which charges constituted major or gross misconduct. In particular the report stated that the sixth and seventh charges could be reduced to major misconduct but stressed that these were matters for the Executive Committee to consider. The report included a summary at paragraph 4 which read as follows:
“4.1 As it is a core principle of reasonable behaviour that employers give employees the opportunity of putting their cases at a disciplinary meeting. Southcity have ensured that the statutory procedure was followed in this case. It is regrettable that, whilst being given three opportunities over a four week period to attend a disciplinary meeting, William Conville failed to turn up on any of the three occasions.
4.2 The Investigating Officer considered all of the evidence presented in the case and, in the absence of any evidence to the contrary, was satisfied that six out of the seven allegations could probably be proven.
4.3 As William Conville has breached the Disciplinary and Grievance Policy and Procedure by way of Gross Misconduct on three occasions, he is therefore liable for summary dismissal.
4.4 In order for any dismissal to be fair, you must act reasonably in how you decide to dismiss and follow the appropriate statutory procedure.
12. The summary went on to set out a number of bullet points dealing with
What, in the authors’ view, tribunals would probably consider in assessing reasonableness. The seventh bullet point refers to giving the employee the chance to appeal against the decision to dismiss. The final paragraph of the report was in bold typescript and stated as follows:
“This report is submitted for the consideration of the Southcity Executive Committee to decide upon what sanction, if any, will be imposed in the light of the information and supporting documentation provided in this report. Once the decision had been taken as to the sanction to be imposed, William Conville will have the right of appeal as per Southcity’s Discipline and Grievance Policy and Procedures.”
13. According to Mr Wallace the Executive Committee duly convened, endorsed the contents of the report and determined that the appropriate sanction was summary dismissal.
14. As a result of the Executive Committee’s decision Mr Stoker wrote to the claimant on 27 March 2009, and informed him that the respondent had decided that his conduct amounted to gross misconduct and that his employment was being terminated with immediate effect. Mr Stoker further advised that as the claimant was in breach of his employment contract he had lost his entitlement to notice pay or pay in lieu of notice and that he would be paid up to and including 24 March 2009. Mr Stoker concluded by advising the claimant that he had the right of appeal against the decision and that if he wished to appeal he should set out his grounds of appeal in writing to Mr Niblock, the chairperson, within 5 working days.
15. On 3 April 2009 the claimant wrote to Mr Niblock and exercised his right of appeal in the following terms-
"I wish to appeal against the decision of the disciplinary panel to dismiss me. The allegations made against me were without foundation. There were health and safety issues involved which were not taken into account.
I did not attend the hearing on 20th March because I needed the assistance of my union representative and I felt too vulnerable to attend without proper advice or representation. I was unable to meet with my union representative as the re-convened date for the hearing of 20th March was determined without any consultation with my union and the date was unsuitable for them."
16. Mr Niblock replied by letter dated 27 March 2009 and advised the claimant that the panel had considered this request and had decided to grant him an appeal hearing and that the hearing would take place on 21 April 2009 at the Centre
17. The hearing went ahead as scheduled on 21 April 2009 before a two person panel comprised of Mr Niblock and another committee member, Ms Paula Bradshaw. Miss Fiona Hamill took the minutes of the hearing. Mr Niblock opened the meeting by reading the claimant's letter of appeal. The claimant advised the panel that although he had received advice from the union he did not have a union representative because he had joined the union too late. Ms Bradshaw questioned the claimant about his non-attendance at the disciplinary hearing on 19 March 2009 and the claimant explained that he did not feel properly equipped to attend the meeting and was under the impression that his union representative would be attending on his behalf. The claimant went on to argue that the decision to dismiss him was unfair because he had not received the respondent's policies and procedures. Ms Bradshaw adjourned the meeting in order to obtain clarification from Mr Stoker about this. Mr Stoker joined the meeting and advised that all staff had been issued with the respondent's current policies and procedures in November 2008. Mr Stoker then left the meeting. The claimant continued to dispute that he had received this material but did accept that he had received a copy of the respondent's Grievance Policy Procedure with the Evidence Matrix. Mr Stoker returned briefly to the meeting and produced copies of the policies and procedures.
18. A discussion ensued about the statutory dispute resolution procedures and the claimant stated that there had been a breach of Step 1 in that he had not that been advised that dismissal could be an outcome of the meeting. In his evidence to the tribunal the claimant claimed that he referred the panel to the case of Zimmer Ltd V Brezan in support of this contention and that the panel was not aware of this case. There is no record in the minutes of this exchange but the minutes were not put forward as a verbatim record of the meeting and in our view it probably did take place. The minutes do record that the claimant expressed concerns about health and safety in Southcity but that when the claimant was asked to elaborate he failed to do so. The minutes also record Mr Niblock and Ms Bradshaw as stating that the meeting was not an appeal but rather was an examination of all the issues to ensure that there were grounds of appeal. This was also Ms Bradshaw’s evidence to the tribunal. As we will come to later this was a rather unsatisfactory halfway house which did not serve the best interests of either party. The meeting concluded with the claimant reiterating that he had concerns about health and safety at Southcity but without providing any details of his concerns.
19. On 28 April 2009, Mr Niblock wrote to the claimant to advise him of the outcome of the meeting. Mr Niblock thanked the claimant for attending and stated as follows:
"The meeting was arranged to determine if there was grounds for an appeal into your dismissal from Southcity Resource and Development Centre.
The Panel examined all the evidence including your verbal statements at the meeting. The Panel have decided that there is no grounds for appeal and have upheld the original decision."
20. The claimant has not worked since his dismissal and is in receipt of Jobseeker’s Allowance.
The Law
21. 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.”
22. The correct legal approach in determining whether a dismissal is substantively unfair is well known. In British Homes Stores v Burchell [1980] ICR 303, where Arnold J 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."
23. Useful guidance as to the application of Article 130 is to be found in the case of Iceland Frozen Foods v Jones [1982] IRLR 439 where the Employment Appeal Tribunal in applying the then equivalent English provision stated as follows:-
“(1) the starting point should always be the words of [Article 130(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.”
In so far as it is necessary to determine whether a dismissal was substantively fair a tribunal we will therefore apply the Burchell test followed by the Iceland Frozen Foods test, namely whether the decision to dismiss was within the band of reasonable responses.
24. In the present case however the principle contention of the claimant is that his dismissal was procedurally unfair. We therefore are required to focus on the relevant statutory provisions in this sphere. The statutory disciplinary and dismissal provisions are set out in the Employment (NI) Order 2003 and the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.
25. The standard procedure in respect of disciplinary dismissals is contained in the 2003 Order and applies in most cases including the present case. It sets out the minimum procedural steps which must be undertaken by an employer in order to dismiss an employee fairly. There are three steps which are 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.”
26. The consequences of failing to adhere to the relevant statutory procedure are
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.
27 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
(c) the non-completion of the statutory procedure was wholly or mainly
attributable to failure by the employee -
(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.
28. Accordingly, if an employer wishes to dismiss an employee it must go through the statutory dismissal procedure. In the present case the standard procedure applies. If the failure to follow the statutory 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.
29. In addition to compensation the claimant also seeks reinstatement. Article 147 of the 1996 Order makes provision for reinstatement orders and Article 150 sets out how a tribunal should go about exercising its discretion to make such an order as follows:
150. — (1) In exercising its discretion under Article 147 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply with an order for reinstatement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3) In so doing the tribunal shall take into account—
(a) any wish expressed by the complainant as to the nature of the order to be made,
(b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
(4) Except in a case where the tribunal takes into account contributory fault under paragraph (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.
(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of paragraph (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.
(6) Paragraph (5) does not apply where the employer shows—
(a) that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement, or
(b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and
(ii) when the employer engaged the replacement it was no
longer reasonable for him to arrange for the dismissed employee's work to be done except by a permanent replacement.
30. 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
31. The claimant submitted that his dismissal was unfair because there had been no previous verbal or written warnings or any allegations of major or gross misconduct made against him. The claimant complained that he first heard of the other allegations some four days after he had been suspended. The claimant also submitted that the decision to suspend him did not take account of health and safety issues or the medical evidence of Dr Toal that the claimant suffered from recurring locking of the lower left knee joint. In addition he submitted that the dismissal was procedurally unfair in that the respondent had not complied with steps 1 and 3. In relation to step 1 the claimant submitted that the letter of 23 February 2009 did not state directly that the claimant was at risk of dismissal. In so submitting he again placed reliance on the case of Zimmer Ltd V Brezan [2008] UKEAT 0294/08. In relation to step 3 the claimant submitted that he had not been afforded an appeal despite correspondence which stated that he had been granted an appeal. Finally the claimant made clear that he was seeking both compensation and reinstatement.
32. On behalf of the respondent Mr Stoker submitted that the claimant was given every opportunity to participate in the disciplinary process but did not do so. As Mr. Stoker put it “We would not be here” if the claimant had attended the disciplinary meeting and put forward his case. Mr Stoker maintained that the claimant would have been granted a further postponement had he requested it submitted that the disciplinary charges arose from a long culmination of failures by the claimant to carry out his work in a proper manner. Mr Stoker accepted that the wording in the letters could have been better and that there was some confusion in the terminology used but reminded that tribunal that this matter was dealt with by a voluntary committee with no experience in human resources. Mr Stoker submitted that the committee had been open, fair and transparent to the best of its ability. With regard to Step 1, Mr. Stoker submitted that it had been complied with as the letter of 23 February 2009 made clear that the claimant was charged with gross misconduct and enclosed a copy of the respondent's Disciplinary and Grievance Policies and Procedures which stated explicitly that an employee found guilty of gross misconduct would be liable to be dismissed summarily without notice. Mr Stoker submitted that the claimant was given the opportunity to advance substantive arguments at the hearing on 21 April 2009 but did not do so.
33. In relation to reinstatement Mr Stoker indicated that it was highly unlikely that the committee would agree to reinstatement in view of the evidence of non-compliance with work instructions. The committee was also upset that part of its program was not being carried out. Moreover the claimant had since been replaced in June 2009 and the respondent did not have resources to employ additional staff. The Centre was fully staffed and the project was due to complete in March 2010. There was no funding in place after that date and therefore there was no post. While Mr Stoker could not rule out obtaining an extension of funding there had been no success to date. Mr Stoker also drew attention to the claimant’s contribution to his own dismissal and his history of non-compliance with work instructions. In relation to compensation, Mr Stoker submitted that no references had been requested in respect of the claimant but if this had occurred a factual reference would have been provided that would have reflected that the respondent was happy with the practical aspect of the claimant’s work but not the administrative side.
Conclusions
34. It is clear that the strength of the claimant’s case lies in the respondent’s failure to adhere to the minimum standards contained in the statutory dispute regulations. The claimant’s case was that the procedure adopted by the respondent’s was defective in two respects.
35. The first alleged failing is the alleged breach of Step 1 of the statutory dispute procedures by failing to inform the claimant in the Step 1 letter that he was at risk of dismissal. It is clear that the letter did not state directly that the claimant was in peril of dismissal but it did include a copy of the respondent's Disciplinary and Grievance Policies and Procedures which stated explicitly that an employee found guilty of gross misconduct would be liable to be dismissed summarily without notice. However, in view of the decision of the Employment Appeal Tribunal in Zimmer Ltd V Brezan [2008] UKEAT 0294/08 which deals with precisely this point, we are satisfied that the claimant must succeed. While no two cases are identical and one must be careful in applying evaluations in one case to another, the Employment Appeal Tribunal in that case was faced with an alleged breach of step 1 in not dissimilar circumstances. In particular, the equivalent letter in that case enclosed a copy of the respondent’s disciplinary procedure which made reference to the consequence of a finding of gross misconduct namely summary dismissal. The Employment Appeal Tribunal did not regard the provision of such a document with the step 1 letter as sufficient to comply with the requirement to inform the employee that dismissal was in the mind of the respondent. The Employment Appeal Tribunal also considered it important that the letter contained no express reference to the specific provision in a long document that dealt with the likely consequences of a finding of gross misconduct. Although Mr. Wallace’s letter did refer in its body to misconduct it is insufficient for the same reason and the dismissal is therefore automatically unfair.
36. The second alleged failing by the respondent is the failure to afford the claimant an appeal in compliance with Step 3. In light of the evidence of Ms Bradshaw and the written record it is clear that the meeting on 21 April 2009 was not an appeal hearing in any sense but rather it was a preliminary meeting to determine whether there were grounds for appeal. This is also apparent from the terms of Mr Niblock's letter of 28 April 2009. In approaching the appeal in this manner, the respondent deprived the claimant of his right of appeal. While there is case law to the effect that an appeal by way of re-hearing is not necessary there must be a hearing at some stage in the process. In the present case the claimant did not have the benefit of either a disciplinary hearing or an appeal hearing. While much of the blame for the absence of a Step 2 hearing can be laid at the door of the claimant who failed to attend the final disciplinary hearing for reasons which are not convincing it does not absolve the respondent of its legal duty to hear the claimant’s case when it came to the appeal. In our view irrespective of the failure of the claimant to attend the disciplinary hearing he ought to have been given a full opportunity to put forward substantive arguments as to why he should not have been dismissed. This was in clear breach of the minimum standards contained in Step 3 of the statutory procedures and the dismissal is therefore automatically unfair in this regard as well.
37. In addition to the procedural failing that we have identified in respect of the appeal it is clear that the dispute as to the appropriate function of the appeal led to a highly unsatisfactory hearing and deprived the claimant of a proper opportunity to put forward grounds as to why he should not be dismissed.
38. The claimant was also at fault in not taking all reasonable steps to attend the Step 2 meeting. Irrespective of the difficulties that he encountered in securing trade union representation, the claimant should at the very least have attended what was clearly going to be the final opportunity to put forward his case on 19 March 2009.
39. In addition, the split in functions between the investigation/disciplinary team and the Executive Committee was not a good way to handle the disciplinary process. Even if the claimant had attended the disciplinary hearing it is apparent that final decisions in respect of whether the charges constituted major misconduct or gross misconduct and what disciplinary sanction if any lay with the Executive Committee which would not have had the benefit of hearing personally from the claimant. While this is not in itself a breach of the 3 Step procedures it was far from ideal.
40. We have given careful consideration as to whether the claimant would have been dismissed in any event if the respondent had adopted a fair procedure which in the circumstances of this case would have involved a more informative Step 1 letter and a substantive appeal. We are conscious of the undesirability of speculation in this area but we are satisfied that the claimant contributed to his dismissal to considerable degree. We find it difficult to conclude that he would have been dismissed if a fair procedure had been followed but we are satisfied that he could have been dismissed and therefore the compensatory award should be the subject of a Polkey deduction which we measure at 25%.
41. When the hearing of this matter concluded on 7 January 2010 there was some doubt as to whether the project on which the claimant was engaged would extend beyond March 2010. As this is relevant to compensation, we decided to reconvene on 12 April 2010 in order to receive further evidence and submissions on this aspect of the case. At the reconvened hearing we were provided with copies of letters sent to the claimant’s co-workers dated 1 March 2010 which indicated that Big Lottery Funding for the project was ending on 31 March 2010 but that a short extension of funding had been granted which would enable the posts to be kept on from 1 April 2010 to 1 October 2010 but due to reduction the level of funding they could only be retained in employment for 12 hours per week. The letters also stated that there would be no further extensions once this funding expired.
Remedies
Compensation
42. In Alexander v Bridgen [2006] IRLR 422 the Employment Appeal Tribunal provided guidance on the interplay between the statutory procedures and fair or unfair dismissal as follows:
(1) if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is the chance of dismissal was more than 50%, the dismissal is fair;
(2) if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made;
(3) if no statutory procedures were followed there is automatic unfair dismissal and four weeks pay is the minimum which must be paid and can be increased by 10 to 50% unless the award of four weeks pay would result in injustice to the employer.
43. As we have already indicated we are satisfied that there should be a Polkey deduction on the basis that the claimant might well have been fairly dismissed in any event had the respondent followed the proper procedures. We assess this at 25%. We are also satisfied that the claimant contributed significantly to his own dismissal through the behaviour that resulted in his suspension and ultimate dismissal. We consider that a 25% reduction in compensation is warranted on this account.
44. The short term extension of funding for the project at a reduced level must also inform our decision as to future loss and we are satisfied that this should not extend beyond 1 October 2010. This means that the claimant would have enjoyed the prospect of a further 7 months employment on reduced hours had he not been dismissed. In these circumstances we consider that the justice of the case is met by awarding the claimant 15 additional weeks loss of earnings in respect of the period between the date of the expiry of his fixed term contract and the ultimate termination date of the project.
45. It is also necessary for us to consider what uplift or reduction is appropriate for failure to adhere to the statutory dispute procedures. In terms of uplift, we are obliged to award an uplift of a minimum of 10% to the claimant’s compensatory award save in exceptional circumstances and to consider whether an uplift of up to 50% is merited on the basis of the respondent’s failure to adhere to the statutory dispute procedures. Likewise we must consider whether the compensatory award should be reduced by similar percentages on the grounds of his failure to comply with the procedures. We have considerable sympathy for the respondent which did everything that it reasonably could to facilitate the claimant’s attendance at the disciplinary hearing. The obligation to comply with the statutory dispute procedures is a two way street and the claimant should have attended the hearing irrespective of the defect in the Step 1 letter. In this respect it is material to note that the claimant did not suggest that his failure to attend was in any way influenced by the contents of the letter. On the contrary this was something that the claimant became aware of later as a result of advice received by him. In the particular circumstances of this case where both parties were at fault we consider that there should be both a 10% reduction and a 10% uplift in the compensation awarded which thus cancel each other out.
Reinstatement
46. We are not persuaded that it would be appropriate to order reinstatement in this case in view of the claimant’s own contribution to his dismissal and the respondent’s need to have the claimant’s work undertaken. We are also mindful that the claimant’s fixed term expired on 28 February 2010 and that the continued funding of the project is only for a relatively short period to 1 October 2010 and is at a reduced level.
AWARD
47. Basic Award
£182.00 (Gross Wage) x 1 x 2 £374.00
Compensatory Award
Loss to date of Hearing
£161.69 (Net Wage) x 35 £5,659.15
Future Loss
£161.69 (Net Wage) x 29 £4,689.01
Sub-Total £10,348.16
Polkey Deduction 25% - £2,587.04
= £7,761.12
Contributory Conduct Deduction 25% - £1.940.28
=£5,820.84
Loss of Statutory Rights £250.00
TOTAL AWARD £6,444.84
48. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. Rule 4(3) requires that the tribunal set out:-
(a) the monetary award;
(b) the amount of the prescribed element, if any;
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
49. For the purposes of these proceedings the monetary award is £6,444.84. The prescribed element is the amount of compensation for loss of earnings up to the date of the hearing. The tribunal finds that the amount of the prescribed element is £5,659.15. The amount by which the monetary award exceeds the prescribed element in this case is £785.69.
50. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26-27 November 2009, 7 January 2010 and 20 April 2010, Belfast
Date decision recorded in register and issued to parties: