Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/6228_09IT.html
Cite as: [2010] NIIT 6228_9IT, [2010] NIIT 6228_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6228/09

CLAIMANT: John Andrew Darling

RESPONDENTS: British Telecommunications PLC

DECISION

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

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr W Irwin

Ms T Madden

Appearances:

The claimant appeared and was represented by Mr Gary Black, Solicitor, Cooper Wilkinson, Solicitors.

The respondents were represented by Mr David Dunlop, Counsel, instructed by Orla O’Neill, Napier and Sons, Solicitors.

The Claim and the Response

1. The claimant lodged a claim on 26 June 2009 claiming unfair dismissal and breach of contract in relation to his dismissal by the respondents in April 2009.

2. The respondents presented a response accepting that they had dismissed the claimant but denying that he had been unfairly dismissed or that they had unlawfully breached the claimant’s contract of employment as alleged.

Sources of Evidence

Witnesses

3. The Tribunal heard from the claimant. The Tribunal also heard from the respondents’ witnesses Mrs Majella Aiken (formerly Duggan) Call Centre Manager in Enniskillen at the material time and Ms Melanie Spencer, Appeal Manager.

Documents

4. The Tribunal was given a hearing folder incorporating fourteen documents and running to over 165 pages.

5. The Tribunal found the following facts as agreed or proven on the balance of probabilities:

The claimant Mr Andrew Darling commenced his employment with the respondents on 17 May 1993. Throughout that time he was a Customer Services Advisor and his duties included taking calls from the public in relation to billing and sales enquiries.

The claimant usually received between 8 and 10 calls per hour. When not taking calls the claimant spent his time catching up on briefings, replying to emails and training.

First Fact Finding Interview

6. On 12 December 2008 the Acting Manager Mr Brian Gamble asked the claimant to accompany him to an interview room. Mr Gamble advised the claimant that this was a “fact finding interview” to establish facts in relation to a disciplinary matter. At the meeting Mr Gamble advised the claimant that he had listened to recordings of phone calls and had come across a series of calls that had not been dealt with in the way they ought to have been.

7. At this first fact finding interview Mr Gamble established that the claimant had been on duty on 9 December 2008 between the hours of 1500hrs and 1730hrs. During this time there had been a number of calls “offered” (referred) to the claimant, (“batch 1”), namely a total of six calls between 15.58 and 17.01 where Mr Gamble advised the claimant that the call records showed that there been no interaction with the customers from the claimant.

8. Mr Gamble put it to the claimant that there were six such calls where the claimant could not be heard at all but the customers were going “hello, hello” repeatedly and the calls were terminated shortly thereafter. Mr Gamble asked the claimant to explain why he had not spoken to any of the customers during any of these phone calls.

9. The claimant stated that he had no recollection of any of these calls, that he would have spoken to the customers if he had heard them and stated that he could not offer any explanation for this.

10. The claimant was aware of the implication of Mr Gamble’s investigations which was that the claimant had deliberately cut off these customers. The claimant stated that he would not do that, that he was dumbfounded and that he did not know what had happened.

11. At this meeting Mr Gamble put a question to the claimant being “would you normally not report a fault or report a sequence like this to a manager” to which the claimant replied “no sure you know what it is like in this place, you have not got time to report faults”.

12. At the close of the interview Mr Gamble summarised the key points of the claimant’s statement to him which were that the claimant could not remember the sequence of calls or what had happened during these particular calls, that he would not normally report this as a fault to a manager as he did not have time to do so and that he would not normally not talk to or deal with a customer offered to him.

13. After this interview Mr Gamble spoke to his line manager, Majella Aiken (then Duggan) and told her what had transpired. On her authorisation Mr Gamble again spoke to the claimant and advised him that he was being suspended pending investigation.

14. Mr Gamble wrote to the claimant on 15 December confirming that the claimant had been put on precautionary suspension from duty pending a full investigation into possible misconduct.

15. On 16 December 2008 Mr Gamble again wrote to the claimant and advised him that he was in the process of investigating a report that on 9 December 2008 the claimant allegedly avoided dealing with calls offered to him, which might constitute gross misconduct. Mr Gamble’s letter entitled, “request for a written explanation”, went on to ask the claimant to provide a written explanation regarding the allegations. The letter stated that the claimant was welcome to come into the BT building to listen to the calls in question before submitting his response. The claimant was given to 19 December to provide this explanation.

16. By letter dated 19 December the claimant wrote to Mr Gamble and stated that he categorically denied that he had been avoiding work on the day in question. The claimant did not attend the call centre to listen to the recorded calls before making this response. The claimant’s written explanation went on to state the he had experienced a few problems with the one view CTI system, that this was nothing new and he had continued on with the job to the best of his ability.

17. The claimant’s written explanation went on to state “the One View CTI system regularly has problems and there is a legacy of faults with one view and calls being lost with the CTI. This is well documented and does not reflect that anyone has wilfully avoided work”. The claimant’s letter also added “I can only account for this that it was a system fault”.

Second Fact Finding Interview

18. The claimant was invited to attend a second fact finding interview on 9 January 2009. It was again conducted by Mr Gamble and attended by the claimant and his Trade Union representative, Mr Damian Gormley. Mr Gamble opened the interview with the words “I am conducting a fact finding interview under BT’s disciplinary procedure following the further allegation of call avoidance which has come to light on 9 December 2008”. Mr Gamble went on to state that no disciplinary decision had been taken at that stage.

19. Mr Gamble asked the claimant to listen to a further series of calls (“batch 2”), from 16.57 hrs on 9 December 2008 until 17.05 hrs, the same day as before. There were six calls in this batch of calls during the course of which a number of customers could be heard in the background but the claimant was not heard speaking.

20. At this second fact finding interview on 9 January 2009 the claimant listened to the calls in question and in answer to the request for an explanation as to why he was not heard attempting to communicate with the customers the claimant stated that if these calls had been presented to him there would be no reason why he would not have answered them and that he assumed that it was something to do with the many faults in the system.

21. The claimant also stressed that where a customer stated that he could hear the claimant breathing but not speaking he had not heard any such customer nor had he ever refused to speak to a customer where anyone was speaking to him. The claimant stated that, where any calls were put through and call centre background noises could be heard, this indicated the fact that there must be a system fault where the customers could hear him but he was unable to hear them. The claimant stressed that there was no call avoidance on his behalf and that there must have been a system failure.

22. On 9 January 2009, Mr Gamble again wrote to the claimant in relation to the investigation of a report that on 9 December 2009 the claimant allegedly avoided dealing with further calls. This request for a written explanation related to the second batch of calls. Mr Gamble’s request for a written explanation stated that any explanation provided would be considered by BT Management under the disciplinary procedure and could lead to a formal oral warning, written warning, final written warning and, if appropriate, one or more of the disciplinary sanctions which are listed below or to dismissal after notice or summary dismissal.

23. By letter dated 10 January 2009 the claimant wrote to Mr Gamble providing his additional written explanation regarding the allegation that he had avoided further calls on 9 December 2008. The claimant categorically denied he was avoiding work and reiterated that he had experienced a few problems the One View CTI system but as this was nothing unusual he carried on with his job to the best of his ability. The claimant’s letter was almost identical to his letter of 19 December.

The Disciplinary Meeting

24. Mrs Aiken wrote to the claimant on 22 January 2009 and stated that having studied the report of the claimant’s Manager Mr Gamble and the claimant’s responses thereto that it appeared that the claimant may have committed the disciplinary offence of failing to provide customers with required quality of service/call avoidance in that:-

On 9 December 2008 a number of calls were observed on the witness system where there was no interaction with the customer and the calls were terminated without resolution.

25. Mrs Aiken’s letter stated that this disciplinary offence constituted gross misconduct and went on to state that before any final decision was reached in relation to the offences the claimant would be invited to a hearing to put forward any further explanations, arguments or facts in relation to the disciplinary charge or anything the claimant wish to be considered in mitigation if BT would conclude that the allegations were true.

26. The disciplinary meeting took place on 3 February 2009 and was attended by Mrs Aiken, Marissa Stabler from Accenture HR Services, Des Darcey, the claimant’s Union Representative and the claimant. At the hearing Mrs Aiken stated the charge that was being put to the claimant and asked him for “anything that you would like me to take into account before a decision has been made”.

27. At the disciplinary meeting Mrs Aiken went through the two batches of calls, calls
1-6 between 15.58 pm and 16.04 pm and calls 7-12 between 16.57 pm and 17.04 pm. The claimant made a number of comments about these calls and the charge against him.

28. The claimant stated that he neither could nor would refuse to speak to customers and stated that the fault must lie with the equipment or the system. The claimant accepted however that he had not reported any such system or equipment fault. Mrs Aiken noted that the claimant had not reported to Mr Gamble any problems with the system or the headset at the first fact finding interview.

29. The claimant added that he believed that the investigation was flawed from the start in that a non-substantive manager, Mr Gamble, ought not to have carried out the fact finding meetings or have been involved in the claimant’s suspension.

30. The claimant also added that Mr Gamble had failed to take account of the fact that on three separate occasions the claimant had stated that he was dumbfounded by the allegations.

31. The claimant added that he believed there was a prejudice against him right from the start, before any charges had been made, on a number of bases; the first of these was that, as a non-substantive manager, Mr Gamble ought not to have carried out the disciplinary meetings or have been involved in suspending him and that he, the claimant, ought not to have been suspended after the first fact finding interview as there was no evidence on which to do this.

32. The claimant also added that he had not had the opportunity to listen to the calls at the first fact finding interview and that it was difficult for him to remember the calls when he did hear them at the second fact finding interview, one month later. The claimant also objected to the fact that in the letter suspending him he had been advised he would be made aware of “the outcome of the findings” but instead the claimant heard nothing for several weeks and then was invited to a second fact finding interview.

33. At this meeting the claimant alleged that in all of their actions the respondents’ had failed to observe its guiding principles of fairness when investigating alleged misconduct and had demonstrated instead a complete ineffectiveness and a lack of professionalism. The claimant stated that this included the respondents’ failure to enclose his disciplinary or sickness records with the letter inviting him to the disciplinary hearing. This documentation was subsequently made available to the claimant but only after this disciplinary meeting on 3 February 2009.

34. At this disciplinary meeting the claimant stressed that Mr Gamble had failed to take into account the claimant’s denials and assertions that he would have maliciously avoided calls. The claimant added that it appeared to him that Mr Gamble had also ignored the claimant’s suggestion that there was a fault in the system. The claimant added that he believed the investigation had been far from thorough and that having worked with the Company for fifteen years he was a long serving and hardworking employee, he hit “green” every week, he had received bouquets from customers and that he was “playing” all the time.

35. The claimant also added that there appeared to him to be no evidence of call avoidance and even stressed there were calls where he, the claimant, could be heard saying “Hello” to the customer where the customer did not respond.

36. However, at this meeting, it was accepted by the claimant that in none of the fifteen calls recorded on the 9 December 2008 was he heard to give the BT salutation. The claimant was unable to give an explanation for this.

After the Disciplinary Meeting

37. After the disciplinary meeting Mrs Aiken conducted fact finding/investigation interviews with three members of the technical staff known as “Green Shirts” namely Shane McKernan, Paul Quinn and Sean Maguire on 11 February 2009. On the same date Mrs Aiken spoke to two more senior members of the technical staff namely Andrew Hamill and Philip McKenna.

38. Mrs Aiken put to these staff members the suggestions and explanations put forward by the claimant that there may have been a fault on the One View and the CTI systems or with the claimant’s headset. Mrs Aiken concluded after this investigation that the claimant’s explanation of there being a fault in either the systems or his headset was unlikely.

39. Mrs Aiken also conducted a fact finding/investigation interview with Brian Gamble on 11 February 2009. Mr Gamble confirmed to Mrs Aiken that he had been in his current subbing position since April 2008, that he had received no formal training in relation to disciplinary or grievance cases but that he had attended the “knowledge calls” (briefings) with other managers and she concluded that he was competent to deal with discipline and grievance cases.

40. Mrs Aiken next wrote to the claimant on 10 March 2009 to apologise to him for the delay in her dealing with his investigation and to advise the claimant she would communicate her decision to him as soon as possible. Mrs Aiken next advised the claimant on 14 April 2009 of there being further delay.

Dismissal Letter

41. Eventually, on 21 April 2009, Mrs Aiken wrote to the claimant and advised him that, having considered all the original evidence and taking into account all points raised by the claimant and his representative, she had concluded that the claimant had committed the disciplinary offence, constituting gross misconduct of failing to provide customers with required quality of service/call avoidance. Mrs Aiken’s letter went on to state that her decision was that this conduct justified summary dismissal.

42. Mrs Aiken’s letter enclosed a document entitled “Rationale for Decision at Gross Misconduct Stage”. Mrs Aiken’s letter went on to advise the claimant that he had a right to an appeal within five working days of receipt of the letter.

The Appeal

43. On 5 May 2009 the claimant made a written appeal against his dismissal which was ultimately considered by Melanie Spencer, Senior Performance Manager, British Telecom.

44. The basis of the claimant’s appeal was that the charge of gross misconduct was excessive and heavy handed. The claimant stated that the charge made against him was not as serious as any of the examples of gross misconduct as set out in the respondents’s own disciplinary procedures.

45. The claimant submitted that an example of misconduct, “deliberately producing substandard work”, was deemed by those procedures as “minor misconduct” and as he had reiterated throughout the process he had not been aware of any calls going unanswered and that his behaviour was not deliberate.

46. Another ground of the claimant’s appeal was that he queried how he could have been charged with call avoidance when there was clear evidence that in some of the calls he was answering the customers but there was no reply from them.

47. A further ground of appeal was that the respondents had been prejudiced against the claimant from the outset.

48. Additionally the claimant’s appeal was that as indicated by one of the more senior technical staff member to whom Mrs Aiken had spoken, Mr McKenna, “dropping out” calls reported by other advisors, including Mr Gamble had not been logged as faults.

49. Another ground of appeal was the fact that while the claimant accepted that call avoidance has a serious impact on customers it was clear from Mrs Aiken’s rationale for her decision to dismiss him that none of the customers contacted by her in relation to any of the calls missed by the claimant could recall anything about them nor did they make any complaints in relation to them.

The Outcome of the Appeal

50. On 22 June 2009 the claimant received a letter from Ms Spencer advising him that, after carefully considering his case, she concluded that Mrs Aiken’s decision to summarily to dismiss him was fair and reasonable and rejected his appeal. Again, the reasons for Ms Spencer’s decision were enclosed in a document entitled “Rationale for Decision and Appeal Stage for: John Darling”. Ms Spencer’s rationale went through each of the submissions made by the claimant in his letter of appeal on 5 May 2009.

51. Ms Spencer’s rationale confirmed that she had listened to all the calls in question, reviewed the claimant’s misrepresentations and case files in full and conducted her own further investigation.

52. Ms Spencer’s response included a concern that the claimant had failed fully to recognise the full impact of a series of unanswered calls. The respondent company viewed such unanswered calls as damaging to customer satisfaction and could lead to negative publicity and potentially the loss of the customer which would equal loss of revenue and even loss of jobs.

53. Ms Spencer relied on the respondent company’s conduct standards in relation to gross misconduct and stated “some misconduct is so serious that it destroys the employment contract between BT and the employee and makes any further working relationship and trust impossible, even where it is a first offence. When, at the end of the disciplinary process, it is found that this has happened, the normal consequence would be summary dismissal (ie, dismissal without notice unless there are mitigating circumstances”).

54. Ms Spencer stated that the claimant’s failure to realise the seriousness of the offence with which he had been charged contributed to the breakdown of the trust between the respondent company and the claimant whereby the respondent was unable to risk the claimant returning to his role, thereby potentially further placing customers and the business in jeopardy.

55. Ms Spencer did note that none of the customers contacted for further information could recall anything unusual and that no complaints had been made. However, in Ms Spencer’s view this did not render the charge against the claimant any less serious as she concluded the call recordings themselves were evidence that those customers had not received the customer service to which they were entitled.

56. Ms Spencer also took into account the claimant’s view that there were two types of calls, those where he could be heard but the customer not and those where the customer could be heard but the claimant not. Ms Spencer noted that the majority of the calls were of the kind where the customers could be heard, background noise could be heard but the claimant was not heard. Ms Spencer also noted however that in no calls was the claimant heard using the BT salutation.

57.     Ms Spencer reviewed the claimant’s submission that there may have been a systems problem which explained the series of calls where the customers failed to make contact with the claimant. Accordingly Ms Spencer considered a number of possibilities,

1.       whether or not there was a recorder fault;
2.       whether or not the headset was unplugged;

3. did the claimant actually log onto One View;

4. whether customers were put on hold.

58. Having considered all these possibilities and reviewed the further investigation carried out by Mrs Aiken, Ms Spencer concluded that the more probable explanation for the high number of calls unanswered in two different ways was a deliberate act by the claimant rather than any technical fault. Ms Spencer was satisfied that the charge was proven.

59. Ms Spencer confirmed that her further investigation was her listening to calls immediately before and just after 9 December 2009 to satisfy herself of the claimant’s “usual” performance. Ms Spencer’s investigation also explored the possibility that there had been a systems fault on the day in question. Ms Spencer sought further technical advice on the claimant’s submission in this regard but was unable to find any evidence that there had been any faults with any of the systems or equipment on the day in question.

60. Ms Spencer added that she took into account the claimant’s fifteen years of service to the respondent company and his satisfactory sick absence record and acknowledged that he had received a “bouquet” from a customer as recently as November 2008 and that the claimant consistently met his targets every week. However, whilst accepting that the claimant was capable of delivering excellent customer service, Ms Spencer did not accept that his fifteen years service and excellent customer service record outweighed the seriousness of the offence proven.

61. In reaching this conclusion Ms Spencer acknowledged the potential costs to the business and the claimant’s colleagues in having to carry out his work, the loss of reputation, revenue and jobs to the respondent company and concluded that she was unable to risk putting customers in that position again.

62. On this basis Ms Spencer rejected the appeal. By letter dated 22 June 2009 the claimant was advised that his appeal had been rejected.

63. At the hearing Ms Spenser accepted that the ground of “call avoidance” did not appear in the respondents’ disciplinary procedures under Gross Misconduct or at all. However Ms Spenser indicated that the claimant would have been aware of the respondents’ serious view of such conduct from his team briefings and training and of the respondent ethos and attitude to its customers. The claimant accepted that this was the case.

Submissions

64. The Tribunal heard submissions from the representatives.

The Law

65. The Tribunal considered that the relevant legislative provisions and case law.

Legislative Provisions

66. The Employment Rights (Northern Ireland) Order 1996 provides at Article 126 Paragraph 1, an employee has the right not to be unfairly dismissed by his employers. Article 130 of this Order goes on to state that:

(1)      In determining 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 principle 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 or an employee holding the position which the employee held.

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

(a) relates to the capability or qualifications of the employee for

performing work of the kind which he was employed to do by the

employer;

(b) relates to the conduct of the employee;

continue to work in the position which he held without contravention

either on his part or on that of his employer of a duty of restriction

imposed by or under a statutory provision.

67.     Paragraph 4 goes on to state where the employer has fulfilled the requirements in Paragraph 1 the determination of whether the dismissal is fair or unfair (having regard to the reasons 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.

68. Both representatives referred the Tribunal to Harvey Division DI, Unfair Dismissal and to extracts there from.

69. The Tribunal also took into account the cases of British Home Stores Limited-v

Burchell 1978 IRLR 379, Iceland Frozen Foods V Jones 1983 IRLR, Dobbin-v-Citybus Limited (2008) NICA 42, NICA, Rogan-v-South Eastern Health and Social Case Trust (2009) NICA, and noted that it was the Tribunal’s role to decide whether the respondents demonstrated a reasonable suspicion amounting to a belief in the guilt of the claimant of the misconduct, whether the respondents had a reasonable basis for this belief and at the stage of forming this belief on these grounds had conducted as much investigation as was reasonable in all the circumstances of the case.

70. If having found that the respondents’s reason for dismissing the claimant was one of the six statutory reasons then the Tribunal noted that its role was to decide whether or not the dismissal of the claimant for that reason was fair.

71. In this regard the Tribunal was careful to avoid substituting its own decision in relation to the course adopted by the respondent and determined only whether in the circumstances the decision to dismiss taken by the respondent fell within a band of reasonable responses which a reasonable employer might have adopted.

The Tribunal’s Conclusions

72. In light of its findings of fact the Tribunal concluded that the dismissal of the claimant was fair. The Tribunal concluded that the respondents had formed a reasonable belief that claimant was guilty of the gross misconduct of call avoidance after a number of investigations into the charge.

73. The Tribunal noted that the matter was first investigated by Mr Gamble, later by Mrs Aiken and subsequently by Ms Spenser and no other explanation for the series of missed calls was established and the claimant’s explanation of system or equipment failure was not validated. The Tribunal also took into account the fact that at no stage of any investigation could the claimant give an explanation of why the call records showed a series of 12 calls in one afternoon where the claimant did not respond to any call put through to him with the BT salutation, even in those calls where the claimant contended that it was his voice saying hello to the customers.

74. In reaching this decision the Tribunal noted that although the claimant suggested that there must have been some system or equipment fault he himself had not noted or reported any such fault on that day. The Tribunal further noted that the respondents’s investigation in this regard went beyond querying whether there had been any such fault on the day in question and explored the possibility or likelihood of such an explanation for the nature of these calls.

75. The Tribunal concluded that the respondent thus had a reasonable belief that the claimant was guilty of the gross misconduct of call avoidance.

76. The Tribunal noted that the offence of call avoidance was not listed in the respondents’ disciplinary procedures. However the Tribunal noted that the list of offences under any head of misconduct was “not exhaustive” and accepted the respondents were entitled to classify call avoidance as gross misconduct on the basis of the serious view the respondents took of such conduct and the fact that it was well known to all employees, including the claimant, that such conduct was so seriously regarded by the company.

77. Was the sanction fair in all the circumstances?

78. The Tribunal considered carefully whether the sanction of dismissal was fair in the circumstances of this case. One of these circumstances was the fact that the claimant had an unblemished work record in fifteen years service with the respondents. Another factor was the undisputed fact that the claimant consistently met his targets.

79. However the Tribunal noted the law in this regard. It noted that although dismissal for first offences was mostly unusual this was not the case where the offence in question was gross misconduct. Also the Tribunal noted that although the offence of “call avoidance” was not specifically referred to in the respondents’ disciplinary procedures where such a reference could act as a warning of the potential sanction of dismissal in this case the claimant accepted that he was well aware of the serious view the respondent took of such conduct.

80. Accordingly the Tribunal concluded that the sanction of dismissal in this case was not outside the band of reasonable responses and therefore the dismissal of the claimant in these circumstances was not unfair.

Chairman:

Date and place of hearing: 21-22 January 2010, Enniskillen

Date decision recorded in register and issued to parties: