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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Brown v Whitbread Group PLC [2010] NIIT 6631_09IT (10 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6631_09IT.html
Cite as: [2010] NIIT 6631_9IT, [2010] NIIT 6631_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6631/09
CLAIMANT: Yvonne Elisabeth Brown
RESPONDENT: Whitbread Group PLC
DECISION ON REVIEW
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent due to its failure to comply with Step 1 of the Statutory Dispute Procedure and awards the claimant £1,485.00 in respect of the basic award, non payment of wages and loss of statutory rights, but reduces the compensatory award by 100% on the basis that the claimant would have been fairly dismissed had the respondent complied with the statutory procedure and on the basis of the claimant’s contributory conduct.
Constitution of Tribunal:
Chairman: Mr Wimpress
Members: Ms G Ferguson
Mr B Gunn
Appearances:
The claimant was unrepresented and appeared on her own behalf.
The respondent was represented by Ms K Abbott, Solicitor, of Weightmans LLP, Solicitors.
The claim and the response
1. The claimant’s claim is that she was unfairly dismissed by her employer. We are satisfied that the claimant's employer was Whitbread Group PLC rather than Brewers Fayre which was the restaurant in which she was employed and the title of the proceedings is amended accordingly.
2. The claimant’s claim form provided a detailed account of the events that led to her dismissal. In addition to giving her own account of these matters, the claimant alleged that the respondent's application of the disciplinary process was unfair. In particular the claimant made the following complaints:-
(i) The period between her suspension and the disciplinary hearing was too short and as a result she did not receive the letter informing her of the disciplinary hearing until two days after it had taken place although she was notified of it by telephone and did attend.
(ii) The decision to dismiss her had been made before the disciplinary hearing.
(iii) She was not afforded a right of appeal against the decision to dismiss her.
3. In its response, the respondent contended that the claimant was properly dismissed on the ground of misconduct following the receipt of a final written warning. In terms of procedural fairness the respondents denied any unfairness and in relation to the particular complaints made by the claimant contended as follows:-
(i) The claimant had been given sufficient time to prepare for the disciplinary hearing and was fully aware of the allegations and evidence against her when she attended the hearing.
(ii) The respondents denied that the decision to dismiss the claimant was made in advance of the disciplinary hearing.
(iii) The claimant had failed to request an appeal meeting and was therefore in breach of the statutory disciplinary and dismissal procedures.
The respondent further contended that in the event that the claimant was found to have been unfairly dismissed any compensation awarded should be reduced to reflect the claimant's breach of the statutory procedures and that the claimant should not be awarded any compensation. In addition the respondents contended that the claimant contributed to her own dismissal by a factor of 100%.
Sources of evidence
4. The tribunal received a bundle of documents from the respondents and heard oral evidence from the claimant, Mr Peoples and Mrs Moore.
The facts
5. The claimant’s date of birth is 5 December 1954. The claimant commenced working for the respondent on 17 March 2006 in the Brewers Fayre Restaurant in Carrickfergus. The claimant was a member of a team that performed waitressing duties in the restaurant. The claimant worked a basic 30 hour week at an hourly rate of £5.73 per hour and on the basis of her pay-slips she received an average gross weekly wage of £180.00 with weekly take home pay of £155.00.
6. In broad terms the background to the respondent’s decision to dismiss the claimant was not in dispute. On 10 November 2008 the claimant was working in the
restaurant and voiced concerns about a guest feeding two young children directly from the trays of their high chairs. According to the claimant she said that it made a mess and was a health and safety issue. The respondent’s version of the incident was that the claimant said to the guest, “those are new highchairs and I would appreciate it if you would not leave them in the same state that you left them in the last time you were here, it was me who had to clean them afterwards".
7. The guest made a complaint about the claimant and the claimant was disciplined. At the disciplinary hearing the claimant admitted speaking to the guest as alleged and was given a final written warning. It was made clear to the claimant that she needed to improve the manner in which she dealt with guests and that she should strive to have no further complaints against her. The claimant was further advised that the warning would last for 12 months and that any further conduct of this nature was likely to result in disciplinary action. The claimant was also informed of her right of appeal but did not exercise it.
8. On 21 November 2008, the claimant attended a performance management meeting with Ms Moore. At the meeting Ms Moore outlined three key goals for the claimant which were not to give opinions that would upset guests, to work as part of the team and to ensure that there was a good work/guest balance which meant that if it was busy she should not spend time chatting to guests. The claimant confirmed that she was happy with these goals. Subsequently, the claimant was also the subject of further informal adverse comments about her attitude or behaviour towards guests.
9. On 15 April 2009 a further incident occurred. A guest in the restaurant, Ms Alison Nelson, complained to the duty manager, Mrs. Pauline Sharkey, that the claimant had been rude to her and her companions throughout the course of their meal. In addition, Ms Nelson had brought her daughter and niece to the restaurant and both were playing in the designated play zone. According to Ms Nelson the claimant told her that her niece was too big for the play zone. Ms Nelson tried to explain that her niece was just looking after her three year old daughter but the claimant responded by saying that, "just so you know, she's too big." In her evidence to the tribunal, the claimant denied adding the phrase "just so you know". Ms Nelson went on to complain that the claimant was continually rude to them throughout their meal. And when Ms Nelson told her not to be so rude, the claimant gave her a dirty look. Finally, when Ms Nelson asked the claimant to bring desserts for the children the claimant said that she had not paid for them and asked to see her receipt. It is common case that when Ms Nelson asked for desserts, the claimant told her that she was not entitled to them and would have to pay an extra 51 pence for each. The restaurant operated a meal deal whereby customers ordering main courses could also have a dessert for an extra 51 pence. If a customer initially decided not to take a meal deal of this nature but subsequently changed his mind and wanted dessert after all they could still avail of this deal for the same price by paying the extra 51 pence. The claimant accepted that when she returned to the kitchen she referred to Ms Nelson as a cheeky bitch. In addition, the claimant told her colleague, Ms Sharkey/Hamilton that she did not want to serve Ms Nelson again or go back to her table.
10. Following receipt of Ms Nelson's complaint, Mr Peoples suspended her on full pay and commenced an investigation. This was confirmed by letter dated 16 April 2009. The material portion of the letter read as follows:-
“I write to confirm that you have been suspended from work on full pay on 16 April 2009, pending the outcome of an investigation into allegations of:-
Behaviour and conduct likely to seriously damage the relationship between guests and the company or bring the company into serious disrepute.
A thorough investigation will be carried out during the period of your suspension and once this is completed, I will be in touch to advise you of the next stage in the procedure.”
11. Mr. Peoples obtained statements from Ms Nelson, Ms Sharkey and Ms Pauline Hamilton, a co-worker, who was on duty on the day in question. Mr Peoples also interviewed the claimant. All of the statements were dated 16 April 2009. Ms Nelson’s statement was taken down by Mr Peoples over the phone. According to Mr Peoples it was most unusual for complaints to be made about the attitude or behaviour of team members. The disciplinary code provided that rude or abusive behaviour towards guests that brought the company into disrepute constituted gross misconduct and could result in dismissal.
12. The interview with the claimant took place on 16 April 2009. The claimant denied being rude to Ms Nelson but did admit making a comment about one of the children being too big for the play zone. The claimant also admitted that there had been a dispute with Ms Nelson about desserts and that she had asked Ms Nelson to pay extra. According to Mr Peoples he then gave copies of the statements that he had received to the claimant. In her evidence to the tribunal, the claimant denied receiving the statements at this juncture and maintained that she did not receive copies of the statements until the subsequent disciplinary hearing. The claimant alleged that the staff statements could not have been made until later that day as the relevant members of staff were not on duty. The claimant did not adduce any evidence in support of this contention. Mr. Peoples in his evidence to the tribunal maintained that he did provide the claimant with copies of the statements. In her evidence, Ms Moore stated that she had full confidence that Mr Peoples had provided the statements to the claimant. On balance we are satisfied that Mr. Peoples did supply the claimant with copies of the statements.
13. On Friday 17 April 2009, Ms Moore, the General Manager, sent a letter to the claimant inviting her to attend a disciplinary hearing. This letter represents a very important step in the relevant statutory procedure and it reads as follows:-
“Dear Yvonne
I am writing to advise you that you are required to attend at a disciplinary hearing. The details are as follows:-
Date: Monday 20 April 2009 Time 15.00
Venue: The Harbour, Brewers Fayre
Jill Moore will be hearing the disciplinary and will be accompanied by Gayle Currie as the Company witness/note taker.
The purpose of the meeting is to discuss allegations of:-
Behaviour and conduct likely to damage the relationship between guests and the company or bring the company into disrepute.
As this hearing may result in disciplinary action being taken against you, up to and including your dismissal from the company, you are entitled to be represented at the hearing. This can either be a fellow employee or an authorised trade union representative.
Please contact Jill Moore as soon as possible to confirm your attendance.
Your sincerely.”
14. On Saturday 18 April 2009, Ms Sharkey phoned the claimant to make sure that she had received the invitation to the disciplinary hearing. It transpired that the claimant had not received the letter by this time and in her evidence to the tribunal she claimed that she did not receive it until 23 April 2009. The claimant produced an envelope at the tribunal hearing that she claimed contained the invitation. It bore the postmark: ‘20/04/09 Belfast 03.40 pm’. It was not disputed by the respondent that it was the source of the envelope but Ms Abbott suggested that the claimant could easily have muddled it up with another letter and put it in the wrong envelope. We have given careful consideration to the matter we prefer the claimant’s evidence. Given that the letter was not posted until Friday 17 April 2009 and the weekend intervened between the posting of the letter and the hearing on the Monday immediately following, we consider it more than likely that the claimant did not receive the letter before the hearing and we accept the claimant's evidence that she did not receive the letter in advance of the hearing.
15. The disciplinary meeting took place as arranged on 20 April 2009. It was conducted by Ms Jill Moore who opened the hearing by reading out the disciplinary charge. In her evidence to the tribunal, the claimant alleged that she complained at the outset of the hearing that she had not been provided with copies of the statements generated by the investigation. The claimant’s complaint was not recorded in the minutes of the meeting and Ms Moore was clear in her evidence that the claimant raised no such complaint. We are satisfied that the claimant did not raise this matter. The minutes record that Ms Moore provided the claimant with additional copies of the statements to read. This was not disputed by the claimant. It is common case that the claimant made no mention of having not received the letter inviting her to the hearing. The hearing then proceeded with the claimant giving her account of events and being questioned about it by Ms Moore. The claimant was not accompanied. The claimant did not seek a postponement of the hearing and we accept Ms Moore’s evidence that she would have acceded to an application for the hearing to be adjourned if the claimant needed more time. During the course of the hearing the claimant admitted making comments about a child being too big for the play zone but denied that it was directed at Ms Nelson. The claimant also admitted that there was a dispute about desserts but denied being rude about it. At the conclusion of the hearing, Ms Moore adjourned the proceedings in order to consider her decision.
16. When the hearing reconvened a short time later Ms Moore informed the claimant that she was being dismissed for misconduct. Ms Moore also provided the claimant with a letter which reads as follows:-
“Dear Yvonne
I write further to the disciplinary hearing held on [20 April 2009] and conducted by [Jill Moore].
For the record [Gayle Currie] attended as the company witness/ note taker and you [declined to be accompanied].
I am writing to confirm my decision [to dismiss you for misconduct.]
The reason for this is:-
[Behaviour and conduct likely to damage the relationship between guests and the company or bring the company into disrepute.]
You were previously warned in the letter dated [18 November 2008] confirming the outcome of the earlier misconduct hearing on [18 November] that this may happen if further instances of misconduct occurred.
Your last day of employment with the company is [20 April 2009,] and you will be paid up to that date. You are entitled to pay in lieu of notice and any outstanding holiday entitlement due. However, if you have exceeded your holiday entitlement, a deduction for this will be made from your final pay in accordance with your contract of employment. Your P45 and any relevant paperwork will be sent to you in due course.
If you feel that you have been unfairly treated in this matter, have the right to appeal against my decision. Any appeal must be made in writing to [Stewart Pollock] at Whitbread PLC, Oakley House, Oakley Road, Bedfordshire LU4 9HQ, within seven working days of receipt of this letter.
Yours sincerely etc.”
This was a standard form letter which the respondents had on their computer system with the only variations being the portions in parenthesis. Thus Ms Moore was able to produce it very quickly once she had made her decision.
17. The claimant did not appeal against the decision to dismiss her. In her evidence to the tribunal the claimant claimed that her reason for not doing so was that Mr Pollock had moved to another location.
18. The claimant was unable to secure alternative employment after her dismissal and was in receipt of Jobseekers Allowance thereafter.
Substantive unfairness
19. 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.”
20. We bear in mind the approach commended in British Homes Stores v Burchell [1980] ICR 303, in relation to the showing of a reason for dismissal in a misconduct case 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."
21. 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.”
22. The correct approach for industrial tribunals in unfair dismissal cases has also been helpfully set out by the Court of Appeal in the recent case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] NICA.
Procedural fairness
23. In terms of procedure, if an employer wishes to dismiss an employee it must go through the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. A dismissal may be unfair even if the statutory procedure is fully complied with by the employer if, for example, the employer has failed to follow its own disciplinary procedure.
24. In the present case the standard procedure applies which is as follows:-
“Step 1: statement of grounds for action and invitation to meeting –
1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3. - (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.”
25. The consequences of failing to adhere to the relevant statutory procedure is set out in Article 130A of the 1996 Order which provides as follows:-
130A. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
26. In addition, Article 17 of the Employment (Northern Ireland) Order 2003 makes provision for increasing awards for non compliance with the statutory procedures by employers as follows:-
17. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
(2) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(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.
27. If the failure to follow the statutory dismissal procedure is because the employer is at fault the tribunal must increase the compensatory award for unfair dismissal by 10% and may increase that award by a percentage up to 50%. If the claimant is at fault the tribunal must similarly reduce the compensatory award by 10% and may reduce it by up to 50%. In both cases the tribunal is not obliged to reduce or increase the award if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable.
28. 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.
29. Article 154(1A) provides as follows:-
Where –
(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and
(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.
(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.
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.
Claimant’s submissions
30. The claimant being unrepresented understandably did not make any substantial legal submissions but maintained that she had not been treated fairly. In particular, the claimant submitted that Mr Peoples did not provide her with copies of the investigatory statements and saw them for the first time at the disciplinary hearing. The claimant fairly accepted that she could not offer any proof as to when they were made. The effect of not having the statements was that the claimant did not have sufficient notice of the allegations against her in advance of the hearing. The claimant also submitted that Ms Moore’s decision to dismiss her was made in advance of the disciplinary hearing. The claimant also drew attention to the failure by the respondent to pay the claimant her final week’s wages as provided for in the letter of dismissal. In addition to compensation the claimant confirmed that in the event of her claim succeeding, she wished to be reinstated.
Respondent’s submissions
Substantive Unfairness
31. On behalf of the respondent, Ms Abbott accepted that the claimant was dismissed and contended that the decision to dismiss the claimant was within the band of reasonable responses and that the dismissal was substantively fair. The respondent had an honest belief that the claimant had committed the offence, had reasonable grounds for that belief and those grounds came from a reasonable investigation of the incident. In this regard, Ms Abbott relied on the investigatory statements taken from Ms Nelson, Ms Starkey the team leader and from Pauline Hamilton, a team member. Ms Abbott also relied on the notes of the investigatory meeting with the claimant.
32. Ms Abbott made a number of submissions in relation to the incident that led to the claimant’s dismissal. Ms Abbott pointed out that it was common case that the claimant made a comment about an older child who was too big for the play zone that was provided for young children. Although the claimant said that the comment was not directed to anyone in particular and she was not aware that the child in question was Ms Nelson's niece. It is clear however that the claimant made a gratuitous comment to a paying customer without knowing whether the niece intended using the play zone. In fact the niece was merely supervising a younger child. In her statement to Mr Peoples, Ms Nelson said that the claimant was so discourteous to her that she was forced to tell her that she should not be so rude to paying customers. It is also common case that when Ms Nelson asked for desserts, the claimant told her that she was not entitled to them and would have to pay an extra 51 pence for each. Ms Abbott submitted that the claimant did not go about this in the correct manner and was offensive in her approach to Ms Nelson and that it was clear that something distasteful did occur.
33. As Ms Abbott pointed out this was not the first time that the claimant had been disciplined for her attitude towards guests. The claimant admitted speaking inappropriately to a guest in November 2008 in respect of which she received a final written warning which she did not appeal. The claimant was also the subject of further informal comments about her attitude or behaviour towards guests.
Procedural Unfairness
34. Ms Abbott firstly addressed the contention that the claimant did not receive a copy of the evidence in advance of the disciplinary hearing. Ms Abbott drew attention to Mr Peoples’ evidence that he gave the claimant copies of the statements and the record of the investigatory interview with her at the same time that he handed her the letter of suspension. The claimant raised no documented objection of this nature at the disciplinary hearing. The claimant alleged that she would not have been aware of the disciplinary hearing on Monday had she not received a telephone call about it from Ms Sharkey on Saturday. Step 2 of the statutory procedure requires the employer to give the employee a reasonable opportunity to consider the charge against her. Mrs Moore acted in accordance with the team handbook by endeavouring to give the claimant 48 hours notice of the hearing. It is significant that the claimant made no complaint about not receiving the evidence prior to giving evidence to the tribunal. Mrs Moore gave evidence that she would have willingly postponed the hearing if the claimant had raised this matter with her at the outset of the hearing. Ms Abbott submitted that this was entirely consistent with the respondent's handbook.
35. Ms Abbott submitted that the respondent complied with Step 2 by giving the claimant copies of the statements obtained during the investigation with the letter of suspension of 16 April 2009. If the claimant had the statements from 16 April 2009, it could not be said that the respondent had failed to comply with both elements of Step 2 namely informing the employee of the basis of the action and giving the employee a reasonable opportunity to respond. Ms Abbott acknowledged that the claimant denied receiving the statements but cast doubt on the claim that they were taken after she was given the letter of suspension. Ms Abbott pointed out that this assertion was made without any evidential basis and submitted that the statements formed the basis of the decision to suspend her.
36. On this basis, Ms Abbott submitted that the complaint about the non receipt of the letter of 17 April inviting the claimant to the disciplinary meeting on 20 April was irrelevant. Ms Abbott further submitted there is no requirement under the standard procedure for notice to be given in writing although it was good practice and that in any event Ms Sharkey told the claimant about the meeting on the Saturday and the claimant appeared well prepared for the meeting. Although the claimant complained about short notice she did not seek a postponement of the disciplinary meeting.
37. Ms Abbott also suggested that it was significant that the claimant said nothing in the recorded evidence of the meeting about not receiving the statements and this was consistent with Ms Moore’s evidence. Furthermore, there was nothing in the claim about not receiving the statements and this point was raised for the first time in the claimant’s evidence to the tribunal.
38. Finally, Ms Abbott submitted that even if there were procedural irregularities it was open to the claimant to appeal but she failed to do so on the basis of a spurious assumption that the designated recipient of notices of appeal had moved posts and would therefore not be in a position to hear it. This would have been an ideal opportunity for the claimant to have raised any complaints about the procedures. With regard to the appeal, Ms Abbott submitted that the claimant’s complaints about difficulty in appealing were unconvincing and flimsy and this should also have an impact on the tribunal’s assessment of her overall credibility.
Conclusions
39. We are entirely satisfied that the decision to dismiss the claimant was substantively fair. The respondent genuinely and reasonably believed in the guilt of the claimant after a reasonable investigation. Nor can there be any serious dispute that the sanction of dismissal was within a band of reasonable responses. The decision to dismiss the claimant for gross misconduct was therefore well within the band of reasonable responses.
40. Although much of the focus of the evidence and submissions was on an alleged breach of Step 2 of the standard disciplinary procedure we consider that, properly analysed, the real failing in this case was in respect of Step 1. Step 1 requires the employer to set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead it to contemplate dismissing or taking disciplinary action against the employee, send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
41. While the letter was sent and contained all the required information we are satisfied that it was not received by the claimant until after the disciplinary hearing. It was not enough to send such a letter with the weekend intervening between the date of posting and the date of hearing. In order for the letter to serve its purpose it had to be received by the claimant. Nor is it sufficient to make a telephone call and not follow it up by taking steps to ensure that the claimant was provided with the letter such as delivering a further copy by hand. While it would have been open to the claimant to have sought an adjournment of the meeting on this basis we do we believe that she can be fairly criticised for failing to do so. It might be said that the claimant was too passive but in these circumstances it was really a matter for the employer to grasp the mettle and postpone the hearing of its own motion. The fact that the claimant was well aware of the nature of the charge that she faced and its likely consequences if she was found to have committed it, does not absolve the respondent from non compliance with Step 1. We are therefore satisfied that the claimant did not receive the letter on time and accordingly the respondents were in breach of step 1 of the statutory dismissal process by failing to ensure that the claimant received the letter inviting her to the disciplinary hearing.
42. In relation to Step 2, we note that the claimant was able to defend herself robustly at the disciplinary hearing and this reinforces our finding that Mr. Peoples provided her with copies of the investigatory statements in advance of the disciplinary meeting. We are therefore satisfied that there was no breach of Step 2.
43. The claimant was also in breach of the statutory procedure by failing to avail of her right of appeal. The claimant's reason for not submitting an appeal lacks credibility and it is important to remember that it is not just the employer who must comply with the statutory procedure. However, due to the respondent’s failure to follow the statutory procedure the dismissal is automatically unfair.
44. We also find that he claimant contributed substantially to her own dismissal by her behaviour towards guests and her failure to improve this aspect of her performance despite being on a final written warning and having the benefit of Ms Moore’s helpful advice about improving her performance.
REMEDIES
Mitigation
45. Although Ms Abbott cast doubt on the inability of the claimant to obtain employment at the minimum wage we are satisfied that she made reasonable efforts to secure alternative employment.
Compensation
46. Assessing compensation in cases of this nature is far from straightforward. In Alexander v Bridgen [2006] IRLR 422 the Employment Appeal Tribunal addressed 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.
Basic Award
47. We have found that the statutory procedure was not followed by the respondent and therefore the dismissal is automatically unfair. The claimant is therefore entitled to the basic award in respect of her dismissal based on three years service. However, we are satisfied that this should be increased to four weeks gross pay in accordance with Article 154 (1)A of the 2003 Order and that this would not cause any injustice to the respondent.
Compensatory Award
48. The compensatory award encompasses both loss up to the date of hearing and
future loss. Although we have not made any finding that the claimant failed to
mitigate her loss, we nonetheless consider that the claimant should be able to
obtain employment within a reasonable period of time and would therefore limit
future loss to six months. However, we are satisfied that the claimant could have been fairly dismissed had the respondent complied with the statutory procedure and on this basis we are satisfied that the compensatory award should be the subject of a Polkey reduction of 100%. Furthermore, the claimant contributed substantially to her own dismissal as outlined at paragraph 44 above and we would also reduce the compensatory award on this basis. These findings extinguish the compensatory award and any enhanced basic award for automatic unfair dismissal for failure to follow the statutory procedure. In any event, having regard to the failure of the respondents to comply with Step 1 and the failure of the claimant to comply with Step 3 by appealing we would not have been prepared to make any increase or deduction in compensation under Article 17 of the 2003 Order as we consider that this constitutes exceptional circumstances.
Reinstatement
49. We do not regard this as a suitable case for reinstatement. While the claimant wanted to be reinstated and there is no evidence that it would be impracticable, we have found that the claimant contributed substantially to her own dismissal and it is clear that the respondent’s trust in the claimant’s ability to carry out her duties in an appropriate manner was seriously undermined. In these circumstances we do not consider reinstatement appropriate. In view of the claimant’s contributory fault we do not consider it appropriate to order her re-engagement either.
Unpaid Wages
50. It was accepted by the respondent that the claimant did not, for reasons unknown, receive her final weeks pay and this must be added to the award.
Award
51. Basic Award
£180.00 (Gross Pay) x 4 years x 1.5 £1,080.00
Compensatory Award
Loss to date of hearing (£155.00 x 38) £5,890.00
Future Loss (£155.00 x 26) £4,030.00
Less 100% Polkey deduction
Less 100% deduction for contributory fault nil award
Agreed figure in respect of non payment of final week’s pay £ 155.00
Loss of statutory rights £ 250.00
TOTAL AWARD £1,485.00
52. 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.
53. For the purposes of these proceedings the monetary award is £1,485.00. 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 zero. The amount by which the monetary award exceeds the prescribed element in this case is £1,485.00.
54. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
55. The chairman of the tribunal directed a review of the decision on his own initiative under Rule 34 (3) (e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 and extended the 14 day time limit to review a decision under Rule 36 (2)(b). In accordance with Rule 36(2) (a) the Tribunal sent a notice to each party explaining the grounds of the review and giving them an opportunity to say why there should be no review. The grounds for the review are that the reasons given in the decision for reducing the award were incorrectly stated. Neither party raised any objection to the proposed variation and the Tribunal, having given further consideration to the matter, therefore varies the decision by substituting paragraphs 48 and amending paragraph 51.
Chairman:
Date and place of hearing: 11 – 13 January 2010, Belfast
Date decision recorded in register and issued to parties: