Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:   2753/10

352/11

 

 

 

CLAIMANT:                      Malcolm Colhoun

 

 

RESPONDENT:                Schrader Electronics Ltd

 

 

DECISION

The unanimous decision of the tribunal is that the respondent failed to properly process the claimant’s application for flexible working and the claimant is awarded compensation of six weeks gross pay as calculated in this decision amounting to £2,280.  There were significant procedural defects in the dismissal of the claimant rendering that dismissal unfair.  However, the tribunal has concluded that the claimant’s conduct caused the dismissal and the basic and compensatory awards otherwise payable were reduced by 100%.  The claim of sex discrimination is dismissed.

 

Constitution of Tribunal:

Vice President:                Mr N Kelly

Members:                        Mrs Ailish Hamilton

Mr Michael Roddy

 

Appearances:

The claimant appeared in person.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Carson & McDowell, Solicitors.

 

Background

 

1.       The claimant has a first class degree in mechanical engineering.  He was employed as a graduate research and development engineer by the respondent on 1 June 2009. 

 

2.       The respondent is a medium sized company engaged in the development and manufacture of remote tyre pressure monitors.

 

3.       In May 2010, the claimant applied for a flexible working pattern.  The application was refused.  The claimant alleged that the statutory procedure was not followed and that remarks made by his immediate line manager, Mr Samuel Porter, and the outcome of the application showed sex discrimination.

 

4.       On 17 June 2010 the claimant received his Annual Performance Review from Mr Porter.  The claimant lodged a grievance in respect of that APR.  That grievance was not upheld.  The claimant appealed that decision on 12 August 2010 and that appeal was not upheld.

 

5.       The claimant was invited to a “disciplinary hearing” on 6 September 2010 to “consider the issue of your difficult personality, the impact this is having on working relationships and whether your future employment with the company is tenable in light of these factors”.  The claimant was dismissed on 6 September 2010.  The claimant appealed and his appeal was unsuccessful. 

 

Issues

 

6.       The issues for the tribunal to determine within its statutory jurisdiction were:-

 

(i)       whether the respondent had complied with the statutory requirements in relation to the claimant’s application for flexible working?

 

(ii)      whether the respondent had unlawfully discriminated against the claimant on the ground of his gender in relation to his application for flexible working?

 

(iii)     whether the claimant had been unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) Order 1996?

 

The Hearing

 

7.       The hearing took place over three days with one reading day, when the panel read the witness statements.  The witness statement procedure was used and each witness went straight to cross-examination and re-examination.  

 

Relevant Law

 

8.       The relevant law in relation to flexible working applications within Northern Ireland is set out in Articles 112F to 112Lof the 1996 Order and the Regulations made thereunder.  Those statutory provisions, in so far as they are relevant to the present case, allow an employee to apply for flexible working for the purposes of caring for a child for whom he is responsible.  The employer may refuse such an application only on specified grounds i.e. the burden of additional costs, detrimental effect on the ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during periods which the employee proposes to work or planned structural changes. 

 

          The procedural requirements placed upon an employer dealing with such an application are strict.  An employer must hold a meeting with the employee to discuss the request within 28 days after the date on which the application was made.  The employer must notify the employee in writing of the decision on the application within 14 days of that meeting - [Regulations 4 and 5 of the Flexible Working (Procedural Requirements) Regulations (Northern Ireland) 2003]. 

 

          Under Article 112H, an employee may complain to an industrial tribunal that his employer has failed to deal properly with a flexible working request in accordance with regulations made under Article 112G, or that his employer has rejected the application on the basis of incorrect facts.  If such a complaint is upheld, the tribunal may award compensation of up to eight weeks gross pay subject to the statutory cap under Article 112C. 

 

9.       In relation to unfair dismissal, Article 130 of the 1996 Order provides that, in determining whether a dismissal is unfair, it is for the employer to show the reason or principal reason for the dismissal and also to show that it is, in the circumstances of this case, a reason falling within the category of “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employer held”.  Once that is done, the determination of whether the dismissal is fair or unfair will depend on whether in all the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee.

 

10.     Despite having, in contemporaneous correspondence, described the step 2 meeting as a disciplinary interview, the respondent advanced the case at the hearing that the dismissal was for “some other substantial reason” and that the respondent’s disciplinary procedure was irrelevant. 

 

Nevertheless the principles set out below, largely in misconduct cases, have general application in relation to dismissals for “some other substantial reason”.    

 

          In Dobbin –v- Citybus Ltd [2008] NICA42, the Court of Appeal approved the decision in Iceland Frozen Foods Ltd –v- Jones [1983] ICR17 which stated:-

 

          “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 [equivalent GB legislation] is as follows:-

 

(1)      the starting point should always be the words of [equivalent GB legislation] 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 an 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, but not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another;

 

(5)      the function of an 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.

 

11.     The Court of Appeal in Andrew James Taylor –v- OCS Group Limited [2006] EWCA Civ 702 stated:-

 

“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [equivalent GB legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury.  That means that they should consider the procedural issues together with the reasons for the dismissal as they have found it to be.  The two impact on each other and the Employment Tribunals task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.

 

12.     In Perkin –v- St George’s Healthcare NHS Trust [2005] EWCA Civ 1174 the Court of Appeal concluded that where the personality of an employee had led to a breakdown in the functioning of the employer’s operation that could amount to “some other substantial reason”  for a fair dismissal.

 

13.     In Alexander –v- Bridgen Enterprises [2006] ICR1277, the EAT referred to step 1 of the statutory disciplinary process and stated:-

 

                    “At that stage, in our view, the statement need do no more than state the issue in broad terms.  We agree with Mr Barnett that at step 1, the employee simply needs to be told that he is at risk of dismissal and why.  In a conduct case, this would be identifying the nature of the misconduct and issue, such as fighting, insubordination or dishonesty.”

 

14.     The legislation in relation to discrimination on the ground of gender provides for a shifting burden of proof.  If the claimant proves facts on which, excluding any explanation from the respondent, a Tribunal could reasonably infer that there has been unlawful discrimination, the burden of proof will shift to the respondent. 

 

The Northern Ireland Court of Appeal, when considering the shifting burden of proof in relation to race discrimination, held in MacDonagh and Others –v- Royal Hotel [2000] NICA3 that the guidance given by the GB Court of Appeal in Igen –v- Wong can be applied to all forms of discrimination and stated:-

 

                    “For the purposes of the present case, the first question that the judge should have articulated was “Have the plaintiffs proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?”

 

          In Madarassy –v- Nomura International Plc [2007] EWCA Civ 33, the GB Court of Appeal stated:-

 

                    “The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which the tribunal “could conclude” that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

 

15.     The correct approach for Tribunals to adopt has been discussed in a series of cases, most recently Nelson  v  Newry & Mourne District Council [2009] NICA 3 April 2009

 

          At Paragraph 24 of that decision, the court stated:-

 

“This approach makes clear that the complainant’s allegation of unlawful discrimination can not be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying [the provisions relating to the shifting burden of proof].  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

Flexible Working Application

 

Relevant findings of fact

 

16.     The claimant’s original working hours, as set out in his written contract of employment were 8.30 to 5.00 pm Monday to Thursday and 8.30 to 2.30 pm on Fridays.  That was changed at the claimant’s request, at the start of his employment, to 8.00 to 4.30 pm Monday to Thursday and 8.30 to 2.30 pm on Fridays.  That was done informally and was not expressly an application under the flexible working legislation or under the respondent’s flexible working policy. 

 

17.     At the time of his formal flexible working application, almost a year after starting his employment, the claimant was married with one child and his wife was pregnant with their second child.  The respondent was aware that he was running one business from home and taking business telephone calls at his place of employment.  Unknown to the respondent, he was also running a second business from home.

 

18.     The claimant showed a completed application form to his line manager, Sam Porter on 11 May 2010.  After hearing both the claimant and Mr Porter give evidence, the tribunal is satisfied that this was not intended to be a formal flexible working application at this stage i.e. on 11 May 2010.  The claimant was seeking advice on how to proceed.  Mr Porter told the claimant that he was unfamiliar with the procedure and that he would have to ask for advice on the form.  He sought advice from more senior managers i.e. Mr Steve Thomson, Mr Michael Dawson and Mr Michael Robinson.

 

19.     Mr Porter then came back to the claimant and advised him that there should be a reference to a child in the application form and that the childcare element in the application should be explained.  The claimant’s reaction to this was that there was no specific place in the standard form for such a reference.  However, Mr Porter’s reference to a child and to the need for the childcare element to be explained in a flexible working application seems to the tribunal to have been perfectly in order, given the purpose of the flexible working scheme. 

 

20.     The claimant’s application was for an alteration to his working hours to allow for annualised hours i.e. a very flexible working arrangement, incorporating on average at least one day’s home working per week.  Mr Porter advised, having checked the position, that that application for home working was unlikely to be successful.  Mr Porter also advised the claimant that only one flexible working application could be made within any twelve month period.  Since that latter restriction is clearly pointed out on the face of the completed application form, and is part of the legislative provisions, the tribunal cannot see anything wrong in Mr Porter drawing this to the claimant’s attention.  Mr Porter also referred to two female applicants in unit 11, another part of the respondent’s organisation, who had asked only for a reduction in their hours, and not for home working, and whose applications were successful.

 

21.     The claimant disregarded Mr Porter’s advice and decided to proceed with his application, substantially as originally formulated.  He advised Mr Porter of that decision.  Mr Porter then handed the application to Mr Ivan Bailie, the research and development manager.  The date on which this occurred is not clear but it would have been in or around mid-May 2010.

 

22.     Mr Bailie did nothing in relation to the application.  According to his evidence, it was “overlooked” in his in-tray.  Given that there had been, by that stage, significant discussion within line management about the claimant’s application, it is surprising that the formal application should have been overlooked in this manner.

 

23.     The claimant sent a reminder to Mr Porter on 17 June 2010, approximately one month after the application had been formally lodged.  This was the same day on which the claimant received his Annual Performance Review to which this decision will shortly turn.

 

24.     On 19 June 2010, the claimant complained to Mrs Ailsa McNeill, the respondent’s head of Human Resources, about the non completion of the flexible working statutory procedure.  He stated:-

 

          “I sincerely hope that this matter can be resolved amicably within SEL, without third party involvement.”

 

25.     Following this clear indication of discontent on the part of the claimant, a Miss Clover Watts-Kerr in the human resources department was tasked on 7 July 2010 to deal with the claimant’s flexible working application.  On 8 July 2010, some three weeks after his reminder to Mrs McNeill, Miss Watts-Kerr asked for a meeting to discuss the flexible working application and to clarify the nature of that application.

 

26.     That meeting took place on the next day, 9 July 2010.  Although it was described as a preliminary meeting, there was a full discussion of the application and the reasons for it.  The tribunal is therefore satisfied that the actual meeting, if not its timing, complied with the legislative requirements.

 

27.     Miss Watts-Kerr then discussed the application with Mr Porter and Mr Bailie.  The application was refused in a written decision on 29 July 2010. 

 

28.     The claimant appealed that decision by e-mail dated 3 August 2010.  The appeal was heard on 11 August 2010 and dismissed by letter on 17 August 2010. 

 

29.     The application had been dismissed on the grounds set out in the letter of 28 July 2010.  These were firstly a detrimental impact on performance in that a design engineer needs to be present in the laboratory to develop, organise and validate relevant tests, to provide support to other departments, to attend meetings and to receive training as a graduate (trainee) engineer.  There was also a perceived detrimental impact on ability to meet customer demand in that an on site presence was required and a detrimental impact on quality in that home working would not allow for the assistance and the level of support that would be required as a trainee.   

 

Decision on flexible working application

 

30.     There are no grounds on which the tribunal could properly interfere with the decision of the respondent to reject the flexible working application.  There is no evidence that the decision was made on incorrect facts.  It seems to the tribunal entirely appropriate that a graduate research and development engineer, with a significant training element in his employment relationship, could not properly move to an annualised hours contract with significant home working.

 

31.     That said, the respondent organisation was clearly on notice from an early stage that the claimant was serious about his flexible working application, however misconceived that application may have been.  It is therefore particularly surprising that Mr Bailie did not address the flexible working application, when it arrived in his in tray, within the statutory time limits.  Given the reference in the claimant’s e-mail of 19 June to “third party involvement” which is plainly a reference to this tribunal, it is even more surprising that Mrs McNeill did not move quickly to have the application processed.  When Ms Watts-Kerr received the copy of the application on 7 July 2010, she initially moved quickly to organise a meeting and to discuss the application with the relevant managers, Mr Porter and Mr Bailie.  However she then failed to issue the written decision, as required by the legislation, within 14 days of the meeting on 9 July 2010.  Given her obvious care to comply with procedure in other respects, this was a surprising error in her part. 

 

32.     The failure of Mr Bailie to address the application when he received it, the failure of Mrs McNeil to move quickly to process the application and the failure of Miss Watts-Kerr to issue the written decision within the statutory time limit, taken together, illustrate that the respondent company’s approach to this application was not of a standard that could reasonably be expected from a company of this size with its own human resources department and with a highly educated workforce.  The failures to follow the statutory procedure were significant and illustrate that the application, however misconceived, was simply not taken seriously and that the procedural aspects of the legislation were disregarded. 

 

33.     The tribunal considers that the appropriate award in this respect is six weeks’ gross pay, subject to the statutory maximum of £380 per week, which amounts to £2,280. 

 

Sex Discrimination

 

34.     The tribunal cannot see any evidence upon which it could reasonably draw an inference of unlawful discrimination in relation to the flexible working application.  It is clear that applications for flexible working had been made by both males and females and had been turned down for both males and females.  The nature of the claimant’s application seems to have been unique i.e. annualised hours working together with a significant home working element.  Given the nature of his employment and the significant training element within it, the decision to refuse the application seems to the tribunal to have been entirely reasonable.  The claimant made a particular complaint about the remarks made by Mr Porter when the claimant had sought his advice on the application form.  As indicated above, the reference to the need to include childcare within the form was unsuprising and consistent with the purposes underpinning the flexible working scheme.  Mr Porter’s reference to the two female workers seems to have been no more than a reference to two recent applicants who had not applied for home working but simply for reduced hours and who had been successful.  It is noteworthy that those two applicants do not appear to have been graduate trainees.  The claimant also agreed that one of the female workers had been allowed to make more than one application during a twelve month period.  The legislation applies only to one application within any twelve month period.  It does not prevent an employer from considering or granting further requests.  The claimant did not make any further requests outside the scope of the statutory scheme and therefore there is no evidence that he was, or would have been, treated differently from a female comparator.  The fact that the limits of the statutory scheme, as explained in his own application form, were drawn to his attention, is not sufficient to ground a reasonable inference of unlawful discrimination on the ground of gender.

 

35.     In the absence of any evidence upon which the tribunal could reasonably draw an inference of unlawful discrimination the claim of sex discrimination is dismissed.

 

Unfair dismissal

 

36.     The respondent’s approach to the claimant’s dismissal appears to have been confused from the outset.  The evidence before the tribunal, repeated on several occasions and maintained in the final submission was that this had not been a disciplinary process alleging misconduct but rather a process leading to a dismissal for some other substantial reason i.e. that the claimant’s difficult personality was having an adverse impact, described as a “devastating impact” on working relationships within the respondent organisation. 

 

37.     However, it is clear from the letter of 30 August 2010 from Mr Michael Robinson, the HR services manager, that the respondent organisation was, at that stage at least, treating this matter as a disciplinary matter.  The letter is headed:-

 

                    “Invite to disciplinary hearing”

 

          The body of the letter makes it plain that it is an invitation to attend a disciplinary hearing and that the disciplinary policy was regarded as relevant.  A copy of that policy was attached to the letter for the information of the claimant.

 

38.     The relevant part of the letter reads:-

 

                    “The disciplinary hearing will consider the issue of your difficult personality, the impact this is having on working relationships and whether your future employment with the company is tenable in light of these factors.”

 

39.     Following that letter, the claimant sought in various e-mails to ascertain whether the charge was one of gross misconduct.  The respondent did not explain at this stage that this was not a misconduct or disciplinary issue but rather a “some other substantial reason” issue.  The only substantive response the claimant received was:-

 

                    “I don’t know what the outcome of our meeting will be.  Cheers”

 

                    “The letter explains what we need to talk about.  It does not make any reference to gross misconduct.”

 

40.     The claimant asked for “full disclosure of any issue to be discussed during Thursday’s hearing”.  He also asked if the respondent “would elaborate on the specifics of the stated allegation”.  No substantive response was received.

 

41.     While Alexander –v- Bridgen Enterprises, makes it plain that the step 1 letter can be in broad terms, it is a basic requirement that someone approaching a interview at which their employment could be terminated, whether that is a capability interview, a misconduct interview or a “some other substantial reason” interview, needs to have a reasonably clear idea of what they are facing so that they are in a position to put forward a meaningful response.  The tribunal was concerned that a straightforward allegation of a difficult personality, without more, may not have been sufficient to enable the claimant to adequately prepare his response and to be in a position to deal with the issue at the interview.

 

42.     That said, having examined in detail the records of the disciplinary interview, it seems plain that the claimant did not at that stage dispute that the issue of his personality, and the way in which he had interacted with others in the workplace, had been the subject of frequent discussions between him and his line managers in the course of his employment.

 

43.     At the start of the disciplinary meeting, an aide memoire which had been prepared by Mr Robinson and Mr Thompson, the co-chairs of the meeting, was read out which, in relatively general terms, described the issues which they wanted to discuss:-

 

-                  abrasive approach when dealing with people

-                  confrontational approach

-                  difficult personality to work with

-                  difficulty establishing working relationships

-                  inability to see that he may be wrong

-                  unreasonably status conscious

-                  inability to adhere to established business processes

-                  lack of understanding of need to stick to timelines

-                  lack of understanding of customer needs

-                  blame others for own non performance

-                  standard response to direction is “I don’t agree”

-                  arrogant

-                  negative outlook with everything seen as a problem to him

-                  routinely disagrees with management decisions

-                  fails to take direction

-                  needlessly critical of colleagues skills and abilities.

 

44.     It was of particular concern to the tribunal that neither Mr Thompson nor Mr Robinson or indeed any other manager including his immediate line manager Mr Porter could point to any written record, even in note form, of any occasion on which the claimant’s alleged difficult personality had been brought to his attention.  In the context of a graduate trainee engineer who would be under supervision, with the aim of developing his ability and talents for the benefit of the respondent, the lack of such records is surprising.  That said, it would appear from the record of the disciplinary interview, which went largely unchallenged, that it was accepted by the claimant that such discussions had in fact taken place – “There have been hints that I need to improve but nothing definite” – “I thought there had been healthy debate over the time.  I’ll change if you need me to”.  However the lack of any written record, in the context of the training and appraisal of a graduate engineer, points to an amateurish and slipshod approach on the part of the respondent.  A further example of this approach was the way in which the claimant’s probation was handled.  The claimant had been appointed on probation.  The probationary period was six months and a probationary assessment and report was therefore due at the end of 2009.  It was overlooked by the respondent. 

 

45.     The tribunal was also concerned about the content of the APR which the claimant received on 17 June 2010.  That APR was largely favourable to the claimant.  It met, in every respect, the basic standards expected of a first year graduate trainee.  In two respects, the mark given to the claimant was higher than the basic standard expected.  There was no mention in that report of a difficult personality; there was no mention of warnings having been given and there was no mention of any specific incidents where inappropriate behaviour had been demonstrated.  There was nothing in that report which a graduate trainee, if that trainee had approached the matter fairly and openly, could have used as a basis for self improvement.  When challenged about the apparent contradiction between the content of the APR on the one hand, and on the other hand, their evidence to this tribunal about the claimant’s personality, the line taken by Mr Porter, Mr Thompson and Mr Robinson was that an improvement had been perceived in the immediate run up to the report being compiled in June 2010.  Mr Porter stated that his usual approach was to encourage trainees and that, on that basis, the report had been compiled without any specific reference to any difficulties which had been demonstrated.  The fact that the evidence of these three witnesses to the tribunal was that the claimant had been a difficult employee from day one does not sit easily with the content of this APR.  The substantial contradictions between the content of the APR and the evidence to the tribunal cannot simply be resolved by an explanation, which is documented nowhere in the APR, that there had been a brief interlude of improvement which had almost immediately deteriorated. 

 

46.     It seems clear to the tribunal that the relationship between the respondent and the claimant deteriorated significantly from the date, 19 June 2010, when the claimant had lodged his grievance about his APR.  No one can dispute that the claimant was entitled to lodge a grievance against the content of any performance appraisal report.  However the content of the grievance and the wording of the grievance was extraordinary.  The claimant accused Mr Porter of lying, blatant lying, dishonesty and victimisation, acting in a malicious way and gross misconduct.  Given the content of the APR, which was in fact almost completely favourable to the claimant, and given the fact that he had been recommended for a full pay increase, the attitude of the claimant, demonstrated in his grievance, and maintained thereafter, was appalling and in the opinion of the tribunal, a fatal blow to any ordinary working relationship between the claimant and his line management.

 

47.     While the claimant accepted before the tribunal that he could have worded the grievance differently, that had not been his attitude at any stage before the tribunal hearing commenced.  In fact, in his grievance meeting, when challenged about the terms of his grievance, he made it plain that he could not think of any better words in which to express what had happened.  In his statement to the tribunal, the claimant states that:

 

                    “I replied that I had written the grievance to be accurate and that I did not know of any more pleasant words to fully describe the issue”.

 

48.     Another factor which appears to the tribunal to have contributed to the deteriorating working relationship was the claimant’s failure to take advantage of a mediation process which had been offered, and his decision, after that mediation, to pursue his grievance, without any retraction or modification of the terms of that grievance.

 

49.     On 20 July 2010 the claimant attempted to plug a piece of electrical equipment into a plug.  There was an electrical flash and it was obvious that there was a displaced wire within that plug.  The claimant did not report this matter to either his first or second line manager.  He went straight to the respondent’s Health and Safety Officer.  This was not a simply expressed report of an incident in which no one was injured.  The claimant stated:-

 

                    “I am a bit concerned that neither PAT testing nor even basic inspection or functionality testing of these extension bars appears to have been done before being rolled out across our office.”

 

          The tone of the e-mail caused difficulties with those in the respondent’s organisation responsible for the electrical installation and for testing.  The respondent’s view was that the most likely explanation was that a wire had been pulled or kicked loose after installation.

 

          In any event, the difficulties caused by the tone of the e-mail, rather than the fact that a report had been made, appear to have added to the respondent’s perception of the claimant as a person ready to criticise the work of others and to cause difficulties. 

  

50.     The claimant’s evidence to the tribunal was that, during the disciplinary and appeal meetings, he had been willing to change his approach, to undergo training or to do whatever was necessary to improve his behaviour.  He stated that he had not been given sufficient specifics of his alleged misbehaviour or his alleged failure to perform and that therefore, the approach taken by the respondent was unfair. 

 

51.     The tribunal is satisfied that the claimant had been aware throughout the period of his employment that his approach to others within the workplace was causing difficulty.  The claimant did indicate at various points in the dismissal meeting that he was willing to undergo training.  However he also stated at one point when his behaviour was being challenged that “I don’t see that”.  When it was put to him that:-

 

                    “It seems to be the same issue with everyone.  You don’t seem to see that there is an issue.  Your personal interactions are the issue here.”

 

          His response was:-

 

                              “I don’t know about this”.

 

52.     The claimant’s representative at the dismissal meeting stated:-

 

                    “Maybe communication on both sides.  There seems to be a lot of misinterpretation on your part (the claimant).  Maybe you need to think how people will interpret things”.

 

53.     The conclusion of the dismissal meeting was:-

 

                              “Despite everything Malcolm just doesn’t get it”.

 

          The decision to dismiss the claimant was made.

 

54.     The claimant appealed the dismissal.  It is notable that during the appeal process, he did not put forward the proposition that he wanted to modify or reform his approach or that he recognised that his behaviour had caused difficulty.  His appeal letter stated:-

 

                  “I wish to appeal this decision on the grounds that it was based entirely on unsubstantiated accusations, speculation and rumour”.

 

55.     In the appeal meeting he stated that “insult after insult” had been fired at him during the disciplinary hearing and that Mr Porter had capitalised on the grievance which the claimant had lodged against him.  He did not suggest that the grievance was inappropriately or extravagantly worded.  He did not offer to withdraw the allegation against his line manager of lying and gross misconduct.  He felt that management were out to get him and that there was nothing to refute as “he had no case to answer”.  He also stated:-

 

                    “If the respondent offered to reinstate him, he would have to think about it as he had issues with how he was treated by certain members of this company”.

 

Decision on Unfair Dismissal

 

56.     The issue to be determined by the respondent at the first meeting and at the appeal meeting was whether or not the claimant had a difficult personality which was impacting adversely on his working relations with others to the extent that dismissal was appropriate.  The only investigation which appears to have taken place was when his statement, during the first meeting, that four named team members, had told him that Mr Porter didn’t like him, was checked with those four individual team members.  Each confirmed that they had not said that Mr Porter did not like the claimant.  However no investigation appears to have taken place either at the first meeting or the appeal meeting into whether or not the claimant had demonstrated a difficult personality or into whether or not this had been a “devastating” impact on the workplace.  The word of the managers, Mr Porter and Mr Thompson was taken at each stage without further enquiry.  As with a misconduct investigation, there needs to be a reasonable investigation into any “substantial reason” which might result in the termination of employment.  It might therefore have been reasonable for enquiries, at least at the appeal stage, to have been made in the workplace to more accurately gauge the effect of the claimant’s behaviour.   

 

          Nevertheless, the tribunal has concluded, after carefully observing the respondent’s witnesses, and having considered their evidence, that the reason for the dismissal was the impact that the claimant’s personality was having on the team working necessary for the respondent’s business.

 

57.     Mr Thompson, who was one of the individuals complaining about the claimant’s personality and its impact on the workplace, co-chaired the dismissal meeting.  That was a clear procedural flaw and is something which could and should have been avoided.  Mr Bailie could have chaired that hearing alone or in conjunction with a HR representative.  There was no need for Mr Thompson to have had a decision making role at that stage.  That error was not adequately remedied on appeal in that Mrs McNeill simply took the view that Mr Thompson and Mr Porter were the ones best placed to reach a decision on the claimant’s personality and that no further enquiries were necessary.

 

58.     There were serious faults on both sides in this case.  The claimant was plainly an individual who had difficulty working within the respondent company.  He had been spoken to by his line management about the manner in which he interacted with colleagues.  He had written an appalling and, in the opinion of the tribunal, entirely unjustified grievance letter in the most extravagant terms.  He had failed, until the tribunal hearing, to attempt to withdraw or modify the terms of that grievance.  He showed no understanding during the dismissal and appeal process of the way in which he had damaged working relationships.  He alienated his work colleagues by alleging that they had told him that Mr Porter did not like him.  To the claimant’s

mind, he had no case to answer; it was all unsubstantiated accusations, speculation and rumour and management were out to get him. 

 

The respondent, with the benefits of a HR department and a highly educated workforce, approached the task of supervising and training the claimant in a shambolic manner.  The flexible working application was not dealt with properly:  no notes were kept of the claimant’s difficulties with colleagues; the APR report misrepresented the position in an attempt to be “encouraging”; the process leading up to the dismissal was wrongly labelled a disciplinary process; the dismissal meeting was co-chaired by Mr Thomson, raising the appearance of bias; full witness statements were not taken from colleagues to provide detail of the difficulties caused by the claimant’s personality and the effect on the workplace; and the charge letter, for want of a better description, was vague when it could easily have included specific examples.  

 

59.     Despite the significant procedural defects in the way in which the respondent approached the dismissal of the claimant, it is clear to the tribunal that the claimant during the first meeting and the appeal meeting had demonstrated to the respondent that he had no real understanding of the difficulties that he had caused within the workplace and had demonstrated that he had no real intention of reforming.  The claimant’s “deathbed repentance” at the tribunal stage in relation the manner in which he had spoken about Mr Porter, his line manager, in the grievance letter was too little and too late; it was inevitable that a reasonable employer would have concluded at the end of the dismissal process that working relationships between the claimant and management had been fatally damaged by the way in which that grievance had been expressed.  It was also inevitable that a reasonable employer would have concluded that the claimant’s working relationships with his colleagues were also significantly damaged given the manner in which he had misrepresented what they had said to him in an effort to bolster his case at the dismissal meeting. 

 

60.     The tribunal therefore concludes that while the dismissal had significant procedural defects, rendering it unfair, the claimant was the author of his own misfortune.  Working relationships, particularly working relationships between the claimant and his line manager had broken down.  The claimant had caused that breakdown by his culpable behaviour i.e. the extravagantly worded grievance.  It could not have been reasonably required of an employer in this situation to have moved the claimant to a different manager or to a different location.  Given the lack of any understanding demonstrated by the claimant of the difficulties that he had created, in particular with his over the top reaction to his APR and with the wording of his grievance, it was entirely reasonable for the respondent to take the view that such difficulties would simply have been repeated with a different manager or in a different location.

 

61.     The tribunal has therefore concluded that both the basic and compensatory awards, to which the claimant would otherwise be entitled, should be reduced by 100% in

respect of the claimant’s contributory conduct, under Articles 156(2) and 157(6) of the 1996 Order.

 

 

 

 

 

Vice President:

 

 

Date and place of hearing:  28-30 June 2011, Belfast                 

 

 

Date decision recorded in register and issued to parties: