Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00600_11IT.html
Cite as: [2011] NIIT 600_11IT, [2011] NIIT 00600_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 2864/10

600/11

CLAIMANT: Milos Hric

RESPONDENTS: 1. Moy Park Ltd

2. Raymond McCrory

3. Gillian Graham

DECISION

The unanimous decision of the tribunal is that the claims of unfair dismissal and disability discrimination are dismissed in their entirety.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr D Hampton

Mr R Hanna

Appearances:

The claimant appeared in person and was not represented.

The first-named respondent was represented by Mr Warnock, Barrister-at-Law, instructed on behalf of the first-named respondent, by Karen Fraser, In-house Solicitor.

The second and third-named respondents were also represented by Mr Warnock, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

Background

1. The claimant was employed in the Moy Park chicken processing plant from 23 February 2009 to 3 December 2010 working on Saturdays and Sundays.

2. The first-named respondent operated two separate factories on the Seagoe Industrial Estate.

3. The claimant is from Slovakia. He is fluent in English and did not require an interpreter at the hearing.

4. The claimant has a partner, Ms Nijole Klimaite, who suffers from epilepsy. Ms Klimaite was also employed by the first-named respondent at the Seagoe Industrial Estate site. She was employed in one factory and the claimant in the other factory.

5. At all relevant times, Ms Klimaite was on sick leave following epileptic fits. She was receiving sick pay. The claimant became upset at an incorrect calculation of his partner’s sick pay which amounted to a shortfall of some £30.00 and also at what he regarded as a failure to pay the correct shift allowance payment, amounting to a shortfall of some £6.00. The incorrect sick pay calculation occurred in mid-September 2010.

6. The claimant had previously been told that he could not make enquiries about Ms Klimaite’s pay without specific authority and that it was for Ms Klimaite to make such enquiries herself. Nevertheless, the claimant went to the first-named respondent’s premises on 17 September 2010 to make enquiries about his partner’s sick pay and shift allowance. Following an altercation in the Wages Department and in a meeting room in the reception area, the claimant was suspended and ultimately summarily dismissed.

7. The claimant alleged both that he had been unfairly dismissed and that the actions of the respondents in suspending him, investigating the altercation on 17 September 2010, implementing the disciplinary procedure, ultimately dismissing him and the manner in which his employment came to an end, amounted to unlawful discrimination on the basis of what is now known as ‘associative disability’, given his position as Ms Klimaite’s carer.

Issues

8. The first issue is whether is the claimant had been unfairly dismissed by the first-named respondent contrary to the Employment Rights (Northern Ireland) Order 1996. The second issue was whether the respondents, or any of them, had unlawfully discriminated against the claimant in the course of the altercation on 17 September 2010 or subsequently in the manner in which the case was investigated or processed through the disciplinary procedure and in the manner in which his employment came to an end.

Relevant law

9. Tribunals must approach carefully any claim that includes not just a claim of unfair dismissal but a claim of unlawful discrimination.

In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-

“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

10. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

11. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“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 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,

(4) 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.”

12. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.

(50) In Iceland Frozen Foods, 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 [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 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 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.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he 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, it 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.”

13. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a sexually suggestive remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

14. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal was again considering a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgment in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

Unlawful discrimination

15. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof, in relation to allegations of discrimination has been discussed several times in case law. The Court of Appeal has recently re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.

24 This approach makes clear that the complainant’s allegations of unlawful discrimination cannot 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 of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

The hearing

16. The hearing was over three days from 3 – 5 October 2011. The claimant gave evidence on his own behalf and called his partner, Ms Klimaite, to give evidence. The following witnesses gave evidence for the respondents:-

(i) Mrs Gillian Graham, the third-named respondent and a Human Resources Officer, employed by the first-named respondent;

(ii) Mr Raymond McCrory, the second-named respondent and the Production Manager, employed by the first-named respondent;

(iii) Ms Martina O’Halloran, a Business Unit Leader, employed by the first-named respondent who conducted the initial investigation into the altercation on 17 September 2010;

(iv) Mrs Janice Porter, a Business Unit Leader, employed by the first-named respondent who conducted the disciplinary hearing and made the decision to dismiss the claimant;

(v) Mr John Cromie, the first-named respondent’s Human Resources Manager; and

(vi) Mr Aaron Whiteman, the Production Manager, employed by the first-named respondent.

The panel met on 6 October 2010 to review the evidence and the submissions and to reach a decision.

Relevant findings of fact – unfair dismissal

17. There was an error of some sort in Ms Klimaite’s sick pay amounting to a shortfall of some £30.00. There was also an error of some sort relating to shift allowance amounting to a shortfall of approximately £6.00. The claimant gave unchallenged evidence that the shortfalls had been subsequently corrected by the first-named respondent within one week of 17 September 2010.

18. The claimant and his partner were employed in different factories in the Seagoe Industrial Estate site. The claimant had been told in August 2010 that he should not approach his partner’s management in the other factory to resolve her pay difficulties and that the first-named respondent could only deal with pay queries from Ms Klimaite herself. Difficulties with the Data Protection Act were mentioned. The first-named respondent (Moy Park) did not receive written or other authorisation from Ms Klimaite allowing the claimant to deal with pay queries on her behalf until 5 December 2010, long after the relevant period.

19. The claimant entered the first-named respondent’s premises on 17 September 2010, a day on which he had not been engaged by the first-named respondent to work. He had no express permission to be on the site. Nevertheless, he signed in with the security personnel at the gate in the normal way. After enquiring where the Wages Department was located, he was directed by a receptionist to that Department.

20. He entered the Wages Department and spoke to two staff there; Mr Chris Kelly and Miss Linda Turkington. The second and third-named respondents subsequently entered the Wages Department and, following an altercation the claimant left the premises and was suspended later that day in a telephone call from Mr John Cromie.

21. Ms O’Halloran interviewed the claimant, the second-named respondent, the third-named respondent, Mr Kelly and Miss Turkington, together with the receptionist who had directed the claimant to the Wages Department. Ms O’Halloran concluded that the alleged behaviour amounted to gross misconduct and warranted disciplinary action.

22. Mrs Janice Porter was asked by the first-named respondent to conduct the disciplinary hearing. She had before her the witness statements which had been taken by Ms O’Halloran together with interview notes which supplemented those witness statements. According to the interview record with the claimant which had been compiled by Ms O’Halloran, the claimant accepted that he entered the Wages Department, and spoken to a ‘fella’ (Mr Chris Kelly). He stated that he had raised his voice when he had been told by Mr Kelly that he could not access the systems to check his query. He stated that he had been spoken to on the phone by the third-named respondent and that he had been told he should not be there in the Wages Department. He accepted that he had put the phone down and continued to speak to Mr Kelly. He accepted that when the third-named respondent and the second-named respondent came into the Wages Department and told him that he should not be there, he ‘started being angry’. He stated that the second and third-named respondents had told him that his partner had not provided proper paperwork; he had responded that that was ‘total lies’. He accepted that he had said that this was ‘fucking ridiculous’. The discussion had continued in a meeting room in reception. The claimant accepted that he had again used the phrase ‘fucking ridiculous’. He stated that the second and third-named respondents ‘accused’ his partner of not bringing in all relevant sick lines. He left the meeting and walked to the security gates and signed out. He then called the police because ‘I think this matter went too far’. In response to a direct question from Ms O’Halloran, he stated that he had raised his voice when the second and third-named respondents arrived in the Wages Department. He had ‘acted like anyone would in these circumstances’. He had raised his voice ‘but it wasn’t in a violent way’. He denied pointing his finger at the second-named respondent.

23. The witness statement and interview notes from Mr Chris Kelly stated that when the claimant had entered the Wages Department he ‘appeared agitated and quite confrontational’. Miss Turkington had phoned the third-named respondent in the Personnel Department to confirm dates in relation to the sick line. Miss Turkington had then passed the phone to the claimant so that the third-named respondent could speak to him. Mr Kelly stated that the claimant took the phone and ‘almost ‘immediately started speaking in an aggressive voice and continued in a raised voice until the end of the call’. Mr Kelly stated that when the second and third-named respondents arrived in the Wages Department, the second-named respondent asked the claimant to explain what he was doing and reminded the claimant that he was not supposed to come on site for this reason (ie to make enquiries about his partner’s pay). Mr Kelly stated the claimant was ‘very confrontational to Raymond with aggressive body language, ie pointing his finger close to Raymond’s face and raising his voice (up to the point of shouting). Raymond told Milos not to point and to calm down, that Wages were dealing with his query and that Milos should accompany him out of the office. Milos then did this while continuing to speak in very antagonistic tones’. In the interview with Ms O’Halloran, he stated that the claimant’s exact words were ‘why are fucking with her?’. He described the claimant’s behaviour towards the second-named respondent in the following way:-

“He was very close to him and pointed his finger this was the most aggressive bit.”

24. Miss Turkington’s statement indicated that she had been on the telephone when the claimant entered the Wages Department. The claimant tried to explain to Mr Kelly about his partner’s sick pay. The claimant appeared agitated at this stage and said that the company was ‘doing his friend out of money’. She stated that the claimant got more agitated. She spoke to the third-named respondent in Personnel to check the details of Ms Klimaite’s sick line. The third-named respondent asked if someone was currently in the Wages Department enquiring about Ms Klimaite’s sick line and if it was Ms Klimaite’s partner. Miss Turkington said that it was and the third-named respondent asked to speak to the claimant. Miss Turkington said that the claimant got very annoyed and agitated on the phone with the third-named respondent and spoke to her in a very angry and aggressive tone. He then set the phone down hard on Miss Turkington’s desk. The second and third-named respondents then appeared in the Wages Department and the second-named respondent asked the claimant to explain what he was doing and reminded him that he was not supposed to come on site to make enquiries about his partner’s pay. Miss Turkington stated that the claimant got very aggressive and confrontational towards the second-named respondent at this stage and that he had pointed his finger very close to the second-named respondent’s face and had raised his voice. She stated that the second-named respondent had asked the claimant to stop pointing, but the claimant appeared ‘to get even angrier with this and continued to raise his voice’. The second-named respondent then asked the claimant to accompany out of the Wages Department.

25. The second-named respondent’s witness statements and interview notes indicated that the claimant had been shouting towards Mr Kelly and waving pay-slips when the second-named respondent entered the Wages Department with the third-named respondent. He seemed agitated and quite loud and was waving his hands about. The second-named respondent stated that he asked the claimant to come out of the room and to continue the discussion in a meeting room near reception with him and the third-named respondent. He was concerned that the claimant was causing a scene in the Wages Department. The second-named respondent tried to explain to the claimant why the pay was wrong and the third-named respondent explained to him again that he should not be there as he had been advised before not to attempt to raise matters relating to another employee’s pay. The claimant kept shouting and would not accept this as an answer. The second-named respondent then asked him to leave the site. The claimant brushed past him as he opened the door and as he did so he said ‘fucking cunt’. The second-named respondent followed the claimant out to the security hut. The claimant signed himself out and left the premises. Some 30 minutes later, the second-named respondent saw the police talking to him and he contacted Mr Cromie and both the second-named respondent and Mr Cromie went out and talked to the police about the incident.

26. The third-named respondent’s interview notes and witness statement indicated that she had received a telephone call from Miss Turkington in the Wages Department. She had answered that query and had then asked Miss Turkington who was raising the query. Miss Turkington had confirmed that it was the claimant. She stated that the claimant had previously been spoken to for approaching his partner’s managers aggressively without permission and on her behalf in relation to pay matters. It had been explained to the claimant that Ms Klimaite should contact the company herself direct with any queries she might have. The third-named respondent decided to go to the Wages Department to explain this again to the claimant; but asked the second-named respondent to accompany her, because the claimant was ‘agitated and shouting’. When they entered the Wages Department the claimant began shouting at the second-named respondent and stated ‘Oh Raymond its you I know how you sort problems’. She stated the second-named respondent tried to get the claimant out of the office as he was making a scene and into a room in reception. However, the claimant remained in the Wages Department pointing his finger at the second-named respondent and shouting. Every time the second-named respondent tried to speak the claimant would not let him and shouted even louder. The claimant eventually left the Wages Department and went to the meeting room in reception where he continued to shout and refused to listen to the second-named respondent. She tried to explain the pay query to him and how it would be amended, but the claimant would not listen. He kept repeating how they were ‘trying to do Nijole out of money’. She stated the conversation was at all times heated and very repetitive on the claimant’s part. She stated that when asked to leave the site the claimant moved towards the door and said ‘thanks Raymond for nothing’ and under his breath he said the ‘f word’, but she could not hear him clearly and could not confirm that he had said ‘fucking cunt’.

27. The claimant was invited to a disciplinary meeting. He was advised that he could be represented by a work colleague or trade union representative. He was not able to obtain such representation.

28. The disciplinary charge was ‘use of foul language, inflammatory remarks, and inappropriate and threatening behaviour towards members of staff and senior management’. He was advised that the alleged actions constituted gross misconduct and if substantiated could lead to disciplinary action including dismissal. He was also offered the use of a translator.

29. The disciplinary hearing was conducted by Mrs Janice Porter with a Ms Sue-Ellen McAllister present as a note taker. The claimant had prepared a statement and insisted on speaking at the start of the meeting. He stated ‘I will speak now, I know my rights’. He stated that there was no one in the first-named respondent that he could trust and that everybody was under the influence of the company. He accused the first-named respondent of playing dirty tricks. He confirmed, in response to a direct question, that he did not need a translator and continued to state that he did not trust any one in the first-named respondent company.

30. The claimant read out the prepared letter and indicated that he wanted to be represented by somebody from a union, but he was not with a union in the first-named respondent company. The disciplinary hearing was adjourned by Mrs Porter on the basis that she needed to know by the following Wednesday who the representative would be and that the next disciplinary hearing would be held on Sunday 14 November 2010.

31. It would appear that the claimant wanted Mr Kevin Doherty from the Irish Congress of Trade Unions to attend on his behalf. However, Mr Doherty notified the first-named respondent company that he did not intend to be present and that he had already informed the claimant of this fact.

32. The disciplinary hearing in fact resumed on 21 November 2010. As the meeting commenced, Mrs Porter noticed that the claimant had his mobile phone amongst his papers and that it had been switched on. Mrs Porter asked the claimant if he was using his mobile phone to record the meeting. He confirmed that he was recording the meeting. Mrs Porter asked him to switch off his mobile phone and he refused. He referred to various potential representatives and confirmed that they would not attend because he was not a member of the union. He repeated that he did not trust anyone in Moy Park.

33. Mrs Porter stated that she and indeed Ms McAllister objected to their voices being recorded and again asked him to switch off the mobile telephone. He refused. Mrs Porter stated that the meeting would not continue and that as an alternative he could give a written letter setting out his defence to the disciplinary charge by Wednesday 24 November 2010. The claimant raised his voice and left the meeting. Mrs Porter locked the door after he left and telephoned security personnel to make sure that he left the site and did not return.

34. On 21 November 2010 the claimant wrote to Miss Porter asking for more details about what was required from him by way of a written response. Further details were provided by the first-named respondent and he submitted a written submission on 1 December 2010.

35. Mrs Porter considered his written submission together with the documents collated in the course of the investigation meeting and concluded that he had been guilty of gross misconduct, namely the use of foul language, inflammatory remarks and inappropriate and threatening behaviour towards staff and senior management. He was summarily dismissed with effect from 3 December 2010. Despite sending several other items of correspondence and indeed lodging a tribunal case in the interval on 8 December 2010, the claimant did not appeal against his dismissal until 22 December 2010 when a letter dated 21 December 2010 was received by a Mr Whiteman. The dismissal letter had made it plain that he had seven working days within which to lodge an appeal. Mr Whiteman concluded that the appeal was out of time and it was rejected on that ground.

Decision – unfair dismissal

36. The tribunal has to be careful not to substitute its own view for that of the employer. Mrs Porter had before her, when making the decision, witness statements and interview notes from the second and third-named respondents, Mr Kelly and Miss Turkington. On the basis of those statements and notes, Mrs Porter was entitled to conclude and did conclude that the claimant had lost his temper, become angry, raised his voice and despite his denials, had, on the balance of probabilities, pointed his finger at the second-named respondent and became aggressive.

37. The tribunal is satisfied that the respondent had conducted a reasonable investigation, judged against the objective standards advocated in Sainsburys Supermarket Ltd v Hitt and that the first-named respondent was entitled to, and did, reach a genuine belief as to the guilt of the claimant in respect of the charge. The penalty of summary dismissal was well within the band of reasonable responses open to a reasonable employer in these circumstances. The dismissal was therefore a fair dismissal.

38. The first-named respondent complied with the requirements of the three stages of the statutory dismissal procedure. The failure of the claimant to stop recording the disciplinary hearing and his attitude rendered that hearing nugatory. The claimant was offered an appeal process with a reasonable time-limit and failed to lodge his appeal in time.

39. It would have been better if the first-named respondent’s standard paperwork in relation to the investigation had been worded differently. It does not seem to this tribunal to be entirely appropriate for the person conducting the investigatory part of the process to make a finding or even a recommendation in relation to whether or not alleged conduct amounts to gross misconduct, major misconduct or minor misconduct. That is a matter which is best left to the disciplinary authority to determine.

Findings of Fact – unlawful discrimination

40. The findings of fact above in relation to unfair dismissal form part of and are incorporated in this part of the decision.

41. The tribunal was asked by the claimant to listen to several audio files which he had surreptitiously recorded of conversations with the respondent. The only conversation which appeared to be potentially relevant to the discrimination claim but not to the unfair dismissal claim, was a recording of the part of the incident on 17 September 2010 which occurred in the meeting room in the reception area. The tribunal listened to that recording. It was apparent from that recording that the claimant had been agitated and angry. It was equally apparent that the claimant had continued to talk about Ms Klimaite’s sick pay and shift allowance after being requested to leave the premises and that he continually talked over and interrupted both the second and third-named respondents. It is equally apparent that the second and third-named respondents spoke calmly and constructively to the claimant and had attempted on several occasions to explain to him that the pay queries relating to Miss Klimaite would be resolved but that it should be resolved by Ms Klimaite and that she would need to contact her GP. Whether or not that was technically a correct position for the second-named respondent or the third-named respondent to take, it was apparent that they both believed that this had been the case and that neither were behaving aggressively or disruptively or in any way abusing the claimant.

42. The claimant, for whatever reason, chose to report the entire matter to the police. The police spoke to the claimant outside the site and advised him to go home. The police also spoke to Mr Cromie, the Human Resources Manager, for the first-named respondent.

43. Mr Cromie then decided that the claimant should be suspended pending investigation and possible disciplinary proceedings. That suspension was communicated to the claimant in the course of a telephone call when the claimant was on his way home. The tribunal concludes that the terms of the suspension and the reason for the suspension were properly notified by Mr Cromie to the claimant.

44. On 20 September 2010, the claimant submitted a lengthy grievance letter both to the first-named respondent and to the first-named respondent’s Ethics Committee. This was a wide-ranging document including allegations that electric boxes were broken, that individuals sneezed into gloves while packing food, that discrimination was rife, that Portuguese workers in the factory were guilty of disciplinary offences etc.

45. With the agreement of the claimant, this matter was progressed through the Code of Ethics procedure and heard by a Mr Claudio Marcon, a Brazilian manager in the parent company of the first-named respondent, who met with the claimant and the claimant’s partner on 8 October 2010. Mr Cromie also attended that meeting. Mr Marcon who was chair of the European Ethics sub-committee of the parent company replied to each of the 11 general areas of complaint on 28 October 2010.

46. On 16 November 2010 the claimant lodged another grievance which alleged that he had been discriminated against on grounds of disability discrimination in his treatment in relation to the incident on 17 September 2010 and the subsequent disciplinary procedures. Ms Porter replied to this grievance rejecting it on 3 November 2010 basically on the ground that the first-named respondent still did not have any authority to discuss Ms Klimaite’s pay with anyone but herself and that the other matters raised were the subject of the ongoing disciplinary process.

47. The claimant supplied a copy of a written authority from Ms Klimaite in relation to pay queries on 5 December 2010 and appealed against the decision on the grievance. That appeal was rejected by Mr Whiteman on 9 December 2010 on the basis that the authority had not been received until 5 December and that the other matters were the subject of the disciplinary process.

Decision – unlawful discrimination

48. The burden of establishing unlawful discrimination rests initially on the claimant. That burden of proof does not shift to the respondent unless and until facts are established on which it would be reasonable to infer unlawful discrimination.

49. The claimant’s case was that the respondents decided to suspend, investigate and dismiss him because he was Ms Klimaite’s partner and carer, because they did not like disabled people and they wanted to get rid of him, the claimant, so they could ‘get at’ Ms Klimaite.

50. There are no facts established upon which a reasonable tribunal could legitimately draw such an inference. It is clear that the claimant had, approximately one month before the relevant altercation, been spoken to about aggressively approaching managers in the other factory to enquire about Ms Klimaite’s pay. The situation had been explained to him. The formal disciplinary process had not been invoked at that stage. If the claimant were correct in his assertion that the company was ‘out to get him’ because of his association with Ms Klimaite, it is remarkable that the first-named respondent did not take the opportunity to do so at that stage. It is equally clear, from the tribunal’s point of view, that his conduct on 17 September was worthy of substantial criticism. He became angry, clearly lost his temper, clearly used foul language, clearly was aggressive and behaved in an entirely inappropriate manner both in the Wages Department and in the meeting room at the reception area. There is no evidence of any sort that the respondents’ actions in respect of the claimant were motivated by any other factor other than his behaviour on that day.

51. The claimant also complains that his holiday pay was not paid until some four weeks after his employment ended. That is an entirely unremarkable fact. The tribunal is well aware that, particularly in cases of summary dismissal, the final settlement of monies due can take a few weeks. A four week delay in the circumstances of this case is not a sufficient ground upon which the tribunal could draw a legitimate inference of unlawful discrimination.

52. The claim of associative disability discrimination is therefore dismissed.

Vice President

Date and place of hearing: 3 – 5 October 2011, Belfast

Date decision recorded in register and issued to parties: