Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/7025_09IT.html
Cite as: [2010] NIIT 7025_9IT, [2010] NIIT 7025_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7025/09

CLAIMANT: Liam Francis McElhone

RESPONDENT: BT PLC

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. The claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Ms Sheehan

Members: Mr J Devlin

Mr J Patterson

Appearances:

The claimant was represented by his wife.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Sources of Evidence

1. The tribunal heard evidence from Jim Vesey, Mark Johnson and Michael Kelly on behalf of the respondent. The tribunal also heard evidence from Tommy Johnston and the claimant. A substantial booklet of agreed documents was also provided to the tribunal and photographs of the alleged deficient tyres.

The Claim and the Defence

2. The claimant claimed that his dismissal from his employment as an engineering services engineer with the respondent on 24 June 2009 was unfair. The respondent accepted the claimant was dismissed without notice for misconduct but denied the dismissal was unfair in all the circumstances

Issues

3. The claim is for unfair dismissal. In the context of this claim, the following issues arise for determination by the tribunal:-

(a) Whether the claimant committed a disciplinary offence by failing to carry out daily and weekly checks of his company vehicle;

(b) Whether as a result of that failure he committed a disciplinary offence by driving on tyres that were “unsafe”;

(d) In the event that the tribunal concludes that the claimant was unfairly dismissed, did the claimant by his conduct contribute to his own dismissal and, if so, to what extent?

Findings of Fact

4. The following facts were found on a balance of probabilities:-

5. The claimant was employed by the respondent for more than 10 years prior to his dismissal for gross misconduct in June 2009.

6. The claimant was at the time of his dismissal employed as an engineer which required the daily use of a business vehicle provided by the respondent.

7. On 19 January 2009 the claimant was involved in a single vehicle car accident when he left the road while driving his business vehicle and damaged the vehicle to such an extent it was deemed uneconomic to repair. The vehicle was removed to the respondent’s depot at Mullusk.

8. On 12 February 2009 an Andy Armstrong, Optical Fibre Infrastructure Manager who was involved in the respondent company’s Safety Committee sent an email to Mark Johnston, the claimant’s second line manager, asking him to make enquiries to identify the driver of the vehicle and for his line manager to inspect the vehicle as “both front tyres are nearly totally smooth and would have presented a hazard in any driving conditions…unacceptable to BT and it is illegal”.

9. The complaint by Andy Armstrong was forwarded to Mr Jim Vesey, the claimant’s immediate line manager who instigated an investigation. He visited the depot at Mullusk and took photographs of the tyres on the relevant vehicle. A fact finding interview was held with the claimant on 22 February 2009 during which the claimant alleged the vehicle was due a PSV on 22 January 2009 and he thought the tyres would be changed then. He claimed to have realised the tyres were “bald” one week previously. He admitted he was familiar with the BT driver’s handbook.

10. On the 30 March 2009 Jim Vesey wrote to the claimant to indicate that he was investigating a report that “on 19 January 2009 you allegedly drove a BT van with bald/illegal tyres which may constitute gross misconduct”. The claimant was requested to provide a written explanation regarding that allegation. This was in accordance with the respondent’s investigatory and disciplinary procedures.

11. The claimant provided a letter in writing dated 31 March 2009. The gist of that letter was that in October 2008 when the service of the van was postponed he was aware that the tyres “would have been due a change soon”. Due to personal events he took no steps to have the tyres changed. He accepted that he was “at fault as I didn’t get the tyres sorted sooner, this will not be a mistake I will make again”.

12. Jim Vesey, when he viewed the tyres at the Mullusk Depot found they were in very poor condition. He observed that the tread bars were totally worn away and substantial areas of the tyres had no tread. Mr Vesey formed the view the claimant’s neglect of his duty to ensure that the van was roadworthy was a serious breach of his responsibilities which could amount to gross misconduct. Accordingly he referred the matter to the claimant’s second line manager Mark Johnston.

13. By letter 1 May 2009 the claimant was invited to attend a disciplinary hearing for four disciplinary offences constituting gross misconduct – in effect that by continuing to drive on bald and illegal tyres on 19 January 2009 the claimant had been guilty of negligence, serious infringement of health and safety regulations, failed to comply with company policy for conducting vehicle checks and maintenance and committed a breach of statutory driving regulations.

14. The disciplinary hearing lasted from 11.04 until 12.18 on 11 May 2009. It was clear that at times it became “hot and heavy” between Mr Johnston and the claimant who was accompanied by his trade union representative. The main issue the claimant raised was whether the respondent could “prove” that the tyres were “illegal” although the claimant was prepared to accept that the tyres were “bald”. The claimant accepted at that hearing that he did not carry out daily checks of the vehicle but claimed he did check the tyres “at least every single week”. The claimant’s contention at the disciplinary hearing was that the respondent company was also at fault as they had postponed the service of his vehicle. The claimant had wished to have any works effected efficiently to save BT money. The claimant explained his delay in having the tyres changed was because “at the time lots of stress…the van was the last thing in my hair…just things like that seemed incidental”.

15. Mr Johnston was assisted in the disciplinary process by the human resources services provided to the respondent company by Accenture HR Services. The documentation issued to the claimant in respect of the decision taken appeared to be drafted initially by Accenture personnel for the consideration and approval by the relevant line manager.

16. As a result of the issue raised at the disciplinary hearing regarding the “legality” of the tyres – Colin Stewart the Regional manager for BT Fleet was requested to comment on the photographs taken by Jim Vesey. His conclusion was that “on the balance of probabilities the photographs suggest that the tyres were not legal at the start of the journey” on 19 January 2009. He also observed there was lack of full visible tread pattern across the breadth of the tyre, the visible wear indicator was missing from between the tread pattern and the tread pattern was missing from a large section of the tyre – all “suggesting that it is worn well beyond the legal limits”. This additional information from Mr Stewart was provided to the claimant prior to Mr Johnston taking the decision to summarily dismiss the claimant. The claimant provided his comments by email on 18 June 2009. The additional information provided by Mr Stewart, together with the email from Mr Armstrong were taken into account by Mr Johnston in concluding that the charge of negligence, failing to comply with company policy re vehicle checks, a breach of statutory driving regulations and a “blatant disregard for safety regulations” had all been established. The decision to summarily dismiss was taken on 23 June 2009 and notified to the claimant on 24 June 2009.

17. The claimant indicated he wished to exercise his right of appeal. An appeal hearing was set for 14 July; Michael Kelly was the appeal manager – accompanied at the hearing by Accenture HR Services Consultant. The union representative submitted written representations for the appeal including a number of company policies including “Driving at Work” which appeared to place responsibility not only on drivers but also their line managers to monitor the condition of company vehicles. Section 7 of this policy reads

(2) “For many people driving at work is an essential part of their job. In such cases their driving performance should be reviewed at 1 to 1 meetings and as part of the annual appraisal and personal development process. Where problems are identified with an individual driver’s performance they should be referred to the company driver training provided for assessment and suitable training, if appropriate.

(3) If your driving standards represent an increased risk to your own safety or to the safety of other road users you will be required to undergo remedial training. This training will be triggered through frequent or serious road traffic accidents, vehicle accident reports or from the results of any driving assessment the company may require you to undertake. If despite receiving this training you continue to represent an increased risk you will be required to attend further intensive training. If following this intensive training you continue to represent an increased risk you will be prohibited from driving on company business. This will mean that you will not be able to continue to be employed on duties that require you to drive…and you will be dealt with under the company’s disciplinary code or the poor performance and attendance procedure as appropriate”.

18. At page 82 of the agreed bundle of documents an extract was provided of the BT Vehicle checklist. It refers to “Tread wear indicator bars can be seen in groves of the tyre. When the tread has worn to this bar it has reached the 1.6mm legal limit”. It also provides “Weekly or when refuelling you must check actual tyre pressure condition and depth of tread”.

19. Mr Kelly upheld the decision to dismiss setting out his rationale for that decision in a document prepared with the assistance of Accenture HR personnel and forwarded to the claimant under cover of letter dated 18 August 2009. His decision was influenced by the claimant’s admission that he was not doing daily checks and the condition of the tyres led Mr Kelly to conclude that “had he been checking it even weekly, he had failed to do anything about it highlighting a complete disregard for his safety and safety of others”. On those facts alone Mr Kelly found the charges of negligence, serious infringement of health and safety and failing to comply with company policy re vehicular checks proved.

20. The delay between the appeal hearing in July 2009 and the notification of the outcome of the appeal in August 2009 appears to be due to Mr Kelly seeking further information from the claimant’s line manager Jim Vesey re actions taken by management to assess the claimant’s knowledge and compliance with company vehicular procedures prior to making his decision. Evidence was produced to Mr Kelly by Mr Vesey that in July 2008, one of the two procedures carried out addressed the issue of “are daily checks on BT vehicle being conducted. Engineer able to demonstrate checks?” This enquiry had elicited an affirmative response from the claimant. Mr Kelly took note of information received from Mr Vesey that the claimant had received additional driver training in November 2007.

21. The claimant’s terms and conditions of employment are also governed by the Company Handbook, which includes a Discipline Procedure. A copy of the document was provided in the agreed bundle at pages 199 to 210. The relevant line managers made no referral of this disciplinary action to BT Security despite at page 202 the provision “Where there is evidence of a criminal act line managers should also refer to “Alleged Offences against BT” and contact BT Security”.

22. At page 214 of the agreed bundle of documents there was a non-exhaustive list of offences which constitute gross misconduct. This included “serious on duty traffic offences; gross negligence which causes or might cause unacceptable loss, damage or injury; serious infringement of health and safety rules”. Provision is made in the Discipline Procedure for precautionary suspension. The policy provides “In certain circumstances, for example in cases of alleged gross misconduct, where the relationship between BT and the individual may have broken down or where it is considered there are risks to BT’s property, the individual or responsibilities to another party, consideration should be given to a brief period of suspension with pay. Any period of suspension should be as short as possible and kept under review.”

23. The claimant was provided with all copies of the notes as required under the procedure and confirmed that the notes were a fair summary of the proceedings.

24. From a careful reading of the claimant’s responses to the questions asked at hearing the tribunal has no difficulty accepting the evidence of Mr Kelly that both the claimant and Mr Johnson became “heated” during the disciplinary hearing.

25. The tribunal noted Mr Kelly’s conclusions that the claimant had failed for a considerable period to carry out the daily and weekly checks of his tyres – to the extent that the tread was substantially missing from the middle of the tyres. The main explanation given at the time to his employers was that he had other things on his mind and the checks were incidental. There was little credibility given to his claim that he had checked his tyres maybe a week or so before the accident – given the wear and tear to be observed on the photographs provided to the disciplinary panel and tribunal.

26. Mr Kelly considered that factors which might otherwise be regarded as mitigating were in fact aggravating circumstances in that it left him unsure that the claimant would prioritise health and safety in the future should his domestic events undergo any upheaval. At the end of the day, his view was that the outright failure to abide by a reasonable work instruction directly linked to health and safety outweighed any mitigating factors. The decision to dismiss was upheld.

27. Subsequent to his dismissal the claimant gained employment with CLM Ltd in September 2009. CLM Ltd carry out sub contract work for BT. After three weeks employment CLM Ltd advised the claimant that BT, through the main contractors Vector, had requested the claimant be moved from BT sites immediately. No reason was given for the request. Upon further enquiry being made, a letter issued from a Mr Dave Fitzgerald, of the respondent company, confirming that “It has been communicated that it would be BT’s strong preference that Mr McElhone, if at all possible, be redeployed onto other activities that did not involve him in BT activities or on the BT estate”. No rationale was provided in the letter or at hearing for this “strong preference”. Some months later, at the conclusion of the claimant’s probationary three month period, his employment was terminated with CLM Ltd. The claimant has been unable to find other alternative employment.

The Law

28. Both parties made oral submissions which were considered by the tribunal.

29. The issue for the tribunal is to determine whether the dismissal was fair or unfair in accordance with Article 130 of the Employment Rights (Northern Ireland) Order 1996. It is for the employer to show the reason for the dismissal, and that it is a potentially fair reason within Article 130(2) of the Order. In this case the respondent relies on the claimant’s conduct.

30. By Article 130(4) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

(a) depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) must be determined in accordance with equity and the substantial merits of the case.

31. In Iceland Frozen Foods Ltd v Jones [1983] ICR 17, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by Section 57(3) of the [Employment Protection (Consolidation) Act 1978] (the equivalent provision to Article 130 of the Employment Rights (Northern Ireland) Order 1996) is as follows:-

a. the starting point should always be the words of Section 57 themselves;

b. 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;

c. 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;

d. 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 takes another;

e. 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”.

32. In the context of a misconduct case, Arnold J in British Home Stores v Burchell [1980] ICR 303 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 necessary 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 of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test and the test all the way through, is reasonableness, and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.

33. Article 130A(2) of the 1996 Order provides that if the employer does not comply with the requirements of the statutory dismissal and disciplinary procedure set out in the Employment (Northern Ireland) Order 2003 the dismissal will be automatically unfair. Insofar as is material, Part 1 of Schedule 1 of the Order provides:-

“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.

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

The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

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.

(d) 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.

34. Even if the dismissal is not automatically unfair, Article 130A (2) of the 1996 Order provides that if there has been any failure by the employer to follow any other procedure that ought to be followed, the dismissal may nevertheless be unfair. However, if the employer establishes that he would have dismissed the employee even if he had followed a fair procedure, then procedural unfairness, of itself, is not a reason to hold the dismissal to be unfair. (Alexander v Brigden Enterprises Limited [2006] IRLR 422; Kelly-Madden v Manor Surgery [2006] EAT/0105/06; Software 2000 v Andrews [2007] IRLR 568.)

35. Harvey on Industrial Relations and Employment Law, Volume 1, D1 [1550] sets out three different circumstances in which dismissal for a first offence may be justified. These are:-

(a) where the act of misconduct is so serious that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct. This is effectively dismissal for gross misconduct;

(b) where disciplinary rules of the company have made it clear that particular conduct will lead to dismissal. This seems to be so even if, without reference to the rules, dismissal would be regarded as unfair; and

(c) where the employee has made it clear that he is not prepared to alter his attitudes so that a warning would not lead to any improvement. Again, it seems that if the employee remained silent on the issue of his future intention, or indicated that he would desist from the conduct in the future, dismissal would not otherwise be justified.

The Tribunal’s Conclusions

36. The first issue is whether the respondent had evidence available to it to found a genuine belief that the claimant committed a disciplinary offence by failing to carry out checks on his vehicle daily and weekly as required by the drivers handbook. The claimant was contractually obliged to effect those checks on his vehicle. The tribunal was not impressed with the suggestion that a driver with the years of experience held by the claimant required training to effect checks on whether his tyres met the legal requirements for use on the road. The tribunal found it noteworthy that no such contention was made by the claimant when the fact finding interview was held with him by Mr Vesey. Further given the fact the tread bar indicators had worn away on the tyres provided reasonable grounds for the respondent’s conclusions.

37. The tribunal then had to consider was dismissal for that offence within the range of reasonable responses of an employer. The tribunal accepts that it was open to the respondent to treat the claimant’s misconduct under a number of headings some of which might have been seen as serious misconduct, but which definitely could be said to also fall within the category of gross misconduct – as set out in the respondent’s disciplinary procedure. The tribunal is satisfied that there was ample evidence on which a reasonable employer could conclude that the employee had committed an act of gross misconduct. The use of the vehicle with the tyres in the condition displayed by the photographs - tyres where the tread is so bare that the inbuilt tread indicator has been removed from the tyre by wear and tear – is clearly a health and safety issue which puts the employer at risk of loss, damage or injury to the employee and other users of the road. The email of Mr Armstrong is also an indicator that the respondent was entitled to conclude that the claimant was guilty of gross misconduct.

38. The tribunal is mindful that it must only consider the reasonableness of the respondent’s conduct, and must not substitute its own view for that of the employer. In reaching the conclusion that the employer acted reasonably in treating the claimant’s conduct as gross misconduct, the tribunal takes into account the fact the investigation was initiated by a member of staff who had responsibility for health and safety matters but who did not know that the claimant was the person responsible for the condition of the tyres on the vehicle which caused him concern. Both the disciplinary and appeal managers went to considerable lengths to explore any of the issues raised by the claimant, as evidenced by the email exchanges subsequent to both hearings.

39. The tribunal must then consider whether it was reasonable in all the circumstances to treat the claimant’s gross misconduct as justifying the dismissal. The claimant submitted in the forms submitted to the tribunal that the respondent chose to dismiss rather than refer the claimant for a remedial driving course as they were motivated by a “policy of high risk sackings in a bid to cut costs”. The tribunal considered in particular the actions taken by the respondent, including the letter issued by Mr Fitzgerald – which clearly undermined the claimant’s attempts to mitigate his loss consequent to the respondent’s dismissal. The absence of any explanation for such an apparent restraint of trade does indeed raise questions about the respondent’s motivation – but on balance the tribunal considers the questions it raises are more relevant to another venue. When the tribunal consider the manner in which the issue of disciplinary investigation first arose via the email of Mr Armstrong and the actions of the management involved thereafter, the tribunal could find no substantive evidence to support the claimant’s submission.

40. The tribunal considers in this case there is a band of reasonable responses to the claimant’s conduct within which one employer might reasonably take one view, another quite reasonably take another. The tribunal is satisfied that the decision to dismiss was within the band of reasonable responses. The claimant’s length of service and experience in driving gave little credibility to his claims that he was neither trained nor provided with tools to assess the safety of the tyres on his vehicle, particularly where the tyres used had an inbuilt tread bar indicator. On the claimant’s own admission as set out in his explanation letter dated 31 March 2009, since late October 2008 when the first MOT was postponed – he was aware that “his tyres were good but would have been due a change soon”. The claimant drives at least 500 miles a week, yet when given a date in December 2008 for a PSV test in January 2009, he still omitted to get the tyres replaced. The claimant appeared to be arguing at tribunal and during the respondent’s appeal process the respondent ought to have given a final written warning, and if the claimant did in fact fail to have learned his lesson, then further disciplinary proceedings would be appropriate. The tribunal does not accept that reasonableness required the respondent to take this approach. The tribunal accepts Mr Kelly’s evidence that the respondent had genuine concerns that the claimant’s attempts to justify his failure to effect daily or weekly checks on his vehicle – due to pressures outside his employment such as his wedding and his parents sale of their farm – all events that occurred months before the relevant accident in January 2009, undermined the respondent’s confidence and trust in the claimant to adhere to health and safety requirements.

41. The tribunal is satisfied that the dismissal was not automatically unfair as the statutory dismissal procedure was complied with.

42. The claimant submitted that the dismissal was procedurally unfair pursuant to Article 130A (2) of the 1996 Order. The claimant alleged that his dismissal was unfair for the following reasons:- (a)the respondent failed to send the claimant for remedial training sessions as set out in the respondent’s company policies prior to disciplinary action being taken and (b) the investigation was seriously deficient in that the actual measurement of the tread on the tyres in question was not taken at the relevant time to “prove” that the tyres were “illegal”.

43. The tribunal concluded that the respondent’s policies do not make clear that any single policy has precedence over another. Further Mr Kelly discovered that the claimant had been sent on at least one remedial driving course in 2007 – some time before this incident in January 2009. Equally it is clear from the disciplinary policy that the respondent reserves the right to move to disciplinary action – even on a first breach if it is sufficiently serious.

44. The tribunal is mindful that the obligation on the employer is to carry out a reasonable investigation. What is reasonable depends on all the circumstance of the particular case. The tribunal is satisfied that the respondent did carry out a reasonable investigation, notwithstanding that the actual tyre tread was not measured but instead photographs were taken of their condition as part of the investigation when Mr Vesey inspected the tyres. On the basis of those photographs and the opinion of the various employees in the company who had knowledge of such matters, in particular Mr Armstrong and Mr Colin Stewart, the tribunal was satisfied that the respondent was entitled to conclude on the balance of probabilities that the disciplinary offences alleged against the claimant had been established.

45. The tribunal is therefore satisfied that the dismissal was not unfair and the claim is dismissed.

Chairman:

Date and place of hearing: 15 March 2010, Strabane.

Date decision recorded in register and issued to parties: