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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGurk v Vaughan Engineering Services L... [2011] NIIT 02747_10IT (06 April 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02747_10IT.html
Cite as: [2011] NIIT 02747_10IT, [2011] NIIT 2747_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2747/10
CLAIMANT: Christopher McGurk
RESPONDENT: Vaughan Engineering Services Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed as a result of the respondent’s non-compliance with the statutory disciplinary and dismissal procedure. The claimant is awarded the minimum basic award of four weeks gross pay, subject to the statutory cap, totalling £1,520.00.
Constitution of Tribunal:
Vice President: Mr Noel Kelly
Members: Mr Roger McKnight
Mr George Hunter
Appearances:
The claimant was represented by his wife, Adele McGurk.
The respondent was represented by Mr T Sheridan, of Peninsula Business Services Limited.
The issue
1. The issue for the tribunal to determine was whether the claimant had been unfairly dismissed by the respondent contrary to the Employment Rights (Northern Ireland) Order 1996.
The hearing
2. The tribunal heard evidence from the following witnesses: the claimant, Mr Mark Vaughan, the respondent’s managing director, and Mr Robert McElhinney, the contracts manager employed by the respondent. The tribunal was also referred to a concise and agreed bundle comprising 55 pages in total.
Relevant findings of fact
3. The claimant is a qualified plumber with some 18 years experience. At the time of his dismissal, he had worked for the respondent for just over four years as a pipe fitter.
4. The respondent company provides heating, ventilating and electrical services to commercial and public sector bodies. It had contracts to install pipe work in the new Boys Model School in Belfast and in the new Lyric Theatre building. The respondent used both direct employees, such as the claimant, and sub-contractors.
5. In both contracts, ie the Boys Model School and the Lyric Theatre, the respondent used a particular system for joints in pipe work. This was known as the ‘Mapress’ system and the relevant components were manufactured by Gerberit who also provided training in the system to members of the respondent’s staff, including the claimant.
6. At the risk of oversimplifying what appeared to the tribunal to be a relatively simple system to operate, the pipefitter was required to use a measuring tool to mark the (preset) appropriate depth to which one pipe should be inserted into the other before the joint was crimped. The insertion depth was to be marked by the pipefitter on one pipe before the two pipes were joined. This was an explicit and clear requirement of the process to ensure, firstly, that the joint would be made correctly with one pipe being inserted to the correct depth into the other, and secondly, to enable a visual check to be made later to ensure that the joint had not moved in the course of further construction work. Once one pipe had been marked and the two pipes joined together, the joint would be crimped by the pipefitter to ensure that it was watertight.
7. Two incidents occurred at the new Boys Model School in or around May 2010. Both involved failures in pipe work. In one incident, in particular, a pipe joint worked loose and, over a weekend, caused flood damage of approximately £200,000.00. This resulted in an insurance claim against the respondent’s insurers. The respondent was unable to identify the employee or sub-contractor who had been directly responsible for the relevant joint.
8. The respondent’s insurers insisted that the respondent re-visited its procedures and its employee training to identify any potential risk areas and minimise the risk of any further incidents occurring in the future.
9. On 20 July 2010, the respondent held a meeting with all its directly employed pipefitters and all the sub-contractors who were directly engaged in the new Boys Model contract. The purpose of the meeting was to identify all areas of risk in the installation method and to put in place all necessary remedial action. One employee of a sub-contractor did volunteer in the course of that meeting that he had not been following the Mapress procedure fully. The respondent was grateful that this individual had admitted that he had not been correctly following the procedure and that he had identified a particular area of risk. They had no means of establishing whether or not this person had been directly responsible for the incidents which caused the significant damage at the school and decided to issue the sub-contractor with a written warning about the training that it should provide for its staff.
10. At that meeting, the consequences of the two incidents at the new Boys Model school and the commercial risk to the respondent were explained and emphasised. It was made clear to all the attendees, including the claimant, that everyone’s job was at risk if there were any further incidents of this type. Client confidence needed to be re-built urgently and the respondent’s insurer needed to be satisfied as to the steps being taken by the respondent to minimise risk. The claimant and his colleagues were not specifically warned by the respondent that any further breaches of procedure would be regarded as gross misconduct and their attention was not specifically drawn to the risk of disciplinary proceedings. However, in the opinion of the tribunal, no one attending that meeting, in the immediate aftermath of an incident which had caused £200,000.00 worth of damage, could have been under any illusion as to the inevitable consequences should any of the respondent’s direct employees or sub-contractors continue to fail to follow strictly the procedures in which they had been trained.
11. Further training of all staff was also provided. The claimant’s training took place on 7 June 2010. As with all the other employees, the claimant was provided with a step-by-step pictorial guide setting out in detail each step of the procedure that had to be followed by a pipefitter in ensuring that pipes were correctly jointed. All employees, including the claimant, were also asked to sign, and did sign a receipt, to acknowledge that they had been given a ‘Mapress’ measuring tool to measure the correct pipe installation depth before completing a joint.
12. The claimant was moved at about the end of July 2010 to the new Lyric Theatre site. Shortly thereafter, the respondent’s engineer felt that the claimant had not been following the ‘Mapress’ procedure correctly, in that he had not always been marking the pipe insertion depth before completing the pipe joint. It therefore could not be determined whether the correct insertion depth had been used. As a result of the engineer’s observations, Mr McElhinney, the contracts manager, visited the site on 13 August 2010 and spoke to the claimant. The claimant’s response was that the pipe joints which had not been correctly marked were ‘fine’. He did not dispute that he had not been following the ‘Mapress’ procedure correctly.
13. The claimant’s evidence at the tribunal was that 50 of the pipe joints that he had personally installed in the Lyric Theatre building had been ‘cut out’ on Wednesday 13 August 2010, ie physically removed and inspected by the respondent, and that they had all been found to be perfectly satisfactory. He also stated in evidence that he had been told to simply refit the joints but not to bother marking the insertion depth on them. The tribunal does not accept this evidence. Firstly, in the tribunal claim form, lodged by the claimant on 21 November 2010, the claimant stated clearly that a ‘visual inspection of the joints’ had been carried out on Wednesday 13 August 2010. He confirmed in cross-examination that a visual inspection was an inspection carried out without disassembling the joint and without cutting out any component. It was, as the term suggests, simply a visual check for the existence of the insertion depth mark on the exterior of one pipe and a visual check for any obvious leaks. Secondly, this version of events was not put forward by the claimant at any stage during the disciplinary or appeal process which followed the discussion on 13 August 2010. Thirdly, this version of events was not put forward by the claimant during his evidence-in-chief. It emerged for the first time during his cross-examination. The tribunal concludes that this evidence was untrue. If it had been the case that 50 of the claimant’s pipe joints had been ‘cut out’, checked and found to be perfectly in order, that would have been the main, and in fact possibly the only, point on which he would have focused during the disciplinary and appeal processes. It is inconceivable that he would forgotten to mention this or felt that he did not have to mention this for some reason until a point midway through his cross-examination.
14. The claimant was suspended by a telephone call on the evening of Friday 16 August 2010 and this suspension was then confirmed in writing. He was invited to attend an investigatory meeting on 20 August 2010.
15. All the pipe work which had been installed by the claimant in the Lyric Theatre building was stripped out by the respondent and removed. This exercise cost the respondent some £12,000.00. A sample of the joints which had been removed were checked. Two were found to be defective and liable to have leaked once heat had been introduced into the system with an inevitable expansion and contraction effect.
16. Mr Vaughan conducted the investigatory meeting. Mr McElhinney and the site foreman, Mr Paul Thompson, were present. The defective joints were shown to the claimant and the claimant did not dispute that he had failed to follow the ‘Mapress’ system, in that he had not marked the insertion depth before completing the joint in each case. Mr McElhinney wrote to the claimant on 23 August 2010 to state:-
“We have taken time to consider your explanation in relation to deviations from the company’s ‘Mapress’ jointing procedures, as discussed at our investigation review meeting on Friday 20th August. We consider your explanation to be unsatisfactory, in that it identified you knowingly deviated from the company’s installation procedures and as such the company now believes this matter to be a disciplinary issue. We would therefore ask that you attend a formal disciplinary hearing at 9.00 am on Friday 27th August in head office. You are entitled to be accompanied at this hearing.”
17. A disciplinary hearing was held on 27 August 2010. It was conducted again by Mr Vaughan. Again, Mr McElhinney and Mr Thompson were in attendance. The claimant did not argue in the course of that meeting that he had correctly followed the ‘Mapress’ procedures. He stated that he had been distracted by personal issues and that he had not been concentrating on his work. He further stated that he was confident that the pipe work was secure. The claimant also argued that he had had insufficient training.
18. Mr Vaughan decided that the claimant had exposed the respondent to a significant commercial risk by failing to follow the ‘Mapress’ procedures. He further concluded that the claimant had failed to take advantage of the warnings issued at the operatives meeting and the further training that he had been given on 7 June 2010 which had followed training he had been given by the manufacturer in 2007. In those circumstances, he regarded the claimant’s actions as gross misconduct and the claimant was summarily dismissed.
19. The claimant appealed the dismissal decision in a letter dated 9 September 2010. He stated the primary reason for his appeal was that his dismissal was inconsistent with previous action in similar cases. He referred to the two instances on the Boys Model School site where, according to the claimant, the two operatives involved in the incidents were neither suspended nor had any disciplinary action against them. He did not identify those two operatives but it would appear that he was referring, in the case of one of those operatives, to the employee of the sub-contractor who had spoken at the operatives meeting. The claimant also alleged that his training had been insufficient.
20. The appeal was heard on 30 September 2010. Mr Vaughan and Mr McElhinney were again present. A Miss McAllister kept a note and Mr David Patterson, a director of the respondent company, was also present. Mr Vaughan’s evidence was that Mr Patterson had in effect chaired the process and that Mr Patterson had made the decision on the appeal. That was not made explicit in the contemporaneous documentation. Mr Vaughan signed the letter of 7 October 2010 confirming the dismissal but that letter does refer to the ‘decision of the company’ rather than to Mr Vaughan’s decision. On that basis and having listened carefully to Mr Vaughan’s evidence, the tribunal concludes that the probability is that the decision on appeal was taken by Mr Patterson.
Relevant law
21. Article 130(A) of the 1996 Order provides:-
“(1) An employee who was dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to the failure of the employer to comply with its requirements.
(2) Subject to Paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
22. The standard dismissal procedure is set out in full in Schedule 1 to the 2003 Order. This provides for a three-stage procedure. The first stage is a written statement of the circumstances which lead the employer to contemplate dismissing the employee; that written statement must be sent to the employee together with an invitation to attend the meeting to discuss the matter. The second stage is a meeting in which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision. The third stage is the appeal and notification by the employer to the employee of the decision on appeal.
23. The wording contained within Article 130(A)(2) is subject to Paragraph (1) of that Article. If the statutory procedure is not properly followed by an employer, the dismissal will be automatically unfair. If the employer shows that he would have decided to dismiss the employee if he had followed the statutory dismissal procedure, that will not change that legal position. It will, however, entitle the tribunal to apply a Polkey deduction to the compensatory award, ie to reduce the compensatory award by an appropriate proportion to reflect the likelihood or the certainty that the dismissal would have occurred in any event. It would still be an automatically unfair dismissal but the compensatory award can be significantly reduced and can be reduced to zero - Polkey –v- A E Dayton Services Ltd [1988] ICR 142. Where there is an automatically unfair dismissal because of a breach of the statutory procedure, the basic award will be a minimum of four weeks gross pay unless that increase would result in “injustice to the employer” – Article 154(1)(a).
24. Article 130 of the 1996 Order 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 it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it:-
(b) Relates to the conduct of the employee.
(4) Where the employee has fulfilled the requirements of Paragraph (1), the determination of the question of 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.”
25. The burden of proof is on the employer on the first instance to establish the reason for the dismissal and, in this case, to demonstrate that it was a reason relating to the conduct of the employee.
26. In Dobbin v Citybus Ltd [2008] NICA 42, the Court of Appeal stated:-
“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 judgments of Mummery LJ in two further cases – Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) v Madden reported [2000] ICR 1283 and J Sainsbury v Hitt [2003] ICR 111.
50 In Iceland Frozen Foods, Brown 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 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.’
(51) To that may be added the remarks of Arnold J in British Home Stores where 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 a misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on 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 of which he formed that belief on those grounds, had carried out as much investigation into the matters 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 he must not be examined further. It is not relevant, as we think, that the respondent 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 example 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 the 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.’
27. The Court of Appeal reviewed these authorities and approved them in the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 2010 where it held:-
‘(21) The test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases, it is generally helpful to follow the remarks of Arnold J in British Home Stores. It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.’.”
28. It is therefore not part of the function of the tribunal to re-run the disciplinary process or to substitute its own view as to the weight which should have been accorded to evidence which emerged in the course of that process. The tribunal, in respect of unfair dismissal, has a limited jurisdiction and is restricted to considering whether the employer acted reasonably, in all the circumstances of the case, by applying the statutory test, as discussed in the decisions set out above.
29. In Alexander v Bridgen Enterprises [2006] ICR 1277, the EAT referred to Stage 1 of the statutory disciplinary process, ie the Step 1 letter, and stated:-
“At that stage, in our view, the statement need do more than state the issue in broad terms. We agree with Mr Barnett that at Step One the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case, this will be identifying the nature of the misconduct and issue, such as fighting, insubordination or dishonesty.”
30. In the case of Zimmer Ltd v Brezan [UKEAT/0294/08/ZT], the EAT stated:-
“23 Unless the employee is enabled to understand from the Step 1 letter that he is at risk of dismissal, in our judgment, the purpose of the Step 1 letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer or, at least, in a dismissal case that dismissal is in the mind of the employer, so that he knows the potential extent of what it is that he may be facing when, armed with the information given to him by the Step 1 letter, he goes to the Step 2 meeting.”
Decision
31. The Step 1 letter on 23 August 2010 was defective in terms of the statutory dismissal procedure, in that it did not put the claimant on notice that he was at risk of dismissal. Given the legislation and the case law referred to in the preceding paragraph, that means that the dismissal is automatically, or technically, unfair for the purposes of the 1996 Order.
32. It is clear from the evidence that the respondent’s reason for dismissal was the conduct of the claimant. The claimant did not seek to argue at the tribunal that there had been no misconduct. He simply sought to argue that his misconduct did not warrant either summary dismissal or dismissal on notice.
33. It is also clear that the respondent’s approach to the disciplinary and appeal processes was substantially flawed. While, given the potentially serious impact of a further pipe failure on the respondent’s business, it might have been entirely understandable that Mr Vaughan, as managing director, would have been anxious to have been involved at all stages in the investigation and disciplinary processes, it was wrong for him to have done so. In the claimant’s case it was inappropriate for Mr Vaughan and for Mr McElhinney to have been involved in the investigatory meeting, the disciplinary meeting and the appeal meeting. The decision-makers at each stage of the process should have been clearly identified and the individuals dealing with each stage should have been separated, insofar as possible within the resources of the respondent company, from each other.
34. Whatever can be said about the technical defects in the dismissal procedure, this claim of unfair dismissal is entirely unmeritorious. The claimant was an experienced plumber. He had received training from the manufacturer of the ‘Mapress’ system on 15 March 2007. While he sought to argue before the disciplinary, appeal and tribunal hearings that he had not received adequate training, he accepted in cross-examination that he was not alleging that the failures identified in the Lyric Theatre had been caused by any lack of training on his part. Furthermore, it was clear that Gerberit had issued a certificate recording his attendance and completion of training in the installation technique in 2007, that he had been present at the operatives meeting, and that he had been given further specific and detailed training at the ‘toolbox training event’ on 7 July 2010. It is also clear that the installation process was, for an experienced plumber, a relatively simple process. Nevertheless, within a few weeks of the incident at the Boys Model School site and shortly after the further training that he received, he failed to follow that simple procedure by measuring and marking the insertion depth when completing pipe joints as specifically required by the training he had received. The claimant sought to compare his position with that of the sub-contractor’s employee who had admitted at the operatives meeting that he had not followed the procedure fully. The tribunal is satisfied that that situation was significantly different. The individual concerned was not an employee of the respondent and the failures had occurred before the operatives meeting and before further training had been provided.
35. The tribunal is satisfied that the reason for the dismissal was ‘conduct’, a potentially fair reason for the purposes of the Order. The fact that there had been misconduct was not disputed by the claimant. The respondent had carried out a proper investigation into the misconduct and genuinely and properly believed the claimant was guilty of misconduct. A reasonable employer in these circumstances was fully entitled to regard this as gross misconduct. It put the respondent’s business at risk; it put the respondent’s good name at risk; it put the respondent’s insurability at risk; it put the jobs of the claimant’s colleagues at risk. In the view of the tribunal it was inevitable, no matter what procedure had been followed in these circumstances, that the claimant would still have been summarily dismissed, at the same point in time, for gross misconduct. The tribunal therefore applies a 100% Polkey reduction to the compensatory award and the only award made to the claimant is therefore the minimum basic award of four weeks pay, subject to the statutory cap, which is:-
4 x £380.00 = £1,520.00
The tribunal has considered whether the maximum basic award would result in injustice to the employee. There are insufficient grounds for such a conclusion in this case.
36. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 22 March 2011, Belfast
Date decision recorded in register and issued to parties: