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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hamill v South Eastern Regional College [2011] NIIT 00030_11IT (05 September 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/30_11IT.html
Cite as: [2011] NIIT 30_11IT, [2011] NIIT 00030_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 30/11
CLAIMANT: Nicola Hamill
RESPONDENT: South Eastern Regional College
Certificate of Correction
In this decision issued on 05 September 2011
On Page 10 under Date and place of hearing: ‘4 and 7 July’ should read ‘4 and 5 July’.
Chairman:
Date: September 2011
THE INDUSTRIAL TRIBUNALS
CASE REF: 30/11
CLAIMANT: Nicola Hamill
RESPONDENT: South Eastern Regional College
DECISION OF THE TRIBUNAL (ON LIABILITY ONLY)
It is the unanimous decision of the tribunal that the claimant was not procedurally or substantively unfairly dismissed.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Ms M Mulligan
Mr J E Martin
Appearances:
The claimant was represented by Mr Samuel Martins of the Employment Law Service.
The respondent was represented by Mr Neil Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. Ms Muriel Tafts and Ms Emma Carson gave evidence on behalf of the respondent. Additionally, there were two bundles of documents before the tribunal, one prepared by the respondent, one prepared by the claimant.
THE CLAIM AND THE DEFENCE
2. The claimant claimed that she had been unfairly dismissed and the respondent denied this claim.
THE RELEVANT LAW
Statutory References
3. In reaching its decision the tribunal considered Article 130 and Article 130A of the Employment Rights (Northern Ireland) Order 1996 and Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003.
CASE LAW
4. The tribunal considered the following cases:-
Alexander v Bridgen Enterprises [2006] ICR1277.
Zimmer v Brezan [2008] UKEAT 0294.
Cartright v King’s College London [2010] EWCA CIV 1146.
Jones v Associated Tunnelling Co Ltd [1981] IRLR477.
James v Waltham Holy Cross UDC [1973] IRLR202.
BHS v Burchell [1978] IRLR379.
Post Office v Foley and HSBC Bank and Madden [2000] IRLR.
Rogan v South Eastern and Social Care Trust [2009] NICA47.
Iceland Frozen Foods Ltd v Jones [1983] ICR17.
ISSUES
5. The tribunal considered the following legal issues:-
1. Whether or not the dismissal of the claimant was procedurally unfair due to a failure to comply with the statutory procedure.
2. Would the claimant have been dismissed anyway had the letter inviting her to the disciplinary hearing complied with the statutory procedure.
3. The substantive reason for the dismissal.
4. (a) Did the employer act reasonably in treating the claimant’s underperformance as a sufficient reason for her dismissal.
(b) Was the decision to dismiss within the band of reasonable responses.
5. The credibility of the claimant and credibility of Ms Muriel Tafts, the witness for the respondent. We have not dealt with this in the decision as it applies in connection with costs which is an issue we have reserved for the reasons set out in the section headed “Costs”.
6. Was the dismissal unfair on the grounds of general procedural unfairness.
7. Did the claimant acquiesce in a variation to her contract or alternatively waive her right to object to the variation of her contract.
FACTS
6. The claimant commenced employment with the respondent on 26 May 2009 as an Events and Publications Officer with an initial probationary period in her contract of employment of six months.
7. The claimant was managed by Muriel Tafts for most of her probationary period with some input from Noreen Baker. During the probationary period concerns arose about the claimant’s performance in certain areas of her work. A meeting was held on 30 November 2009 between the claimant and Muriel Tafts to discuss these concerns and the claimant’s probation period. The outcome of the meeting was that the claimant was told by Muriel Tafts that her probation period would be extended for a further three months until the end of February 2010. This was to give the claimant a chance to achieve a standard of work that would enable her to pass the probationary period and become confirmed in her post. Muriel Tafts and Noreen Baker met with the claimant on a monthly basis to discuss her performance. The dates upon which they met were 30 November 2009, 18 December 2009, 1 February 2010 and 23 August 2010. The reason for the gap between the meeting of 1 February 2010 and the meeting of 23 August 2010 was that the claimant was absent from work from in around mid-February 2010 to in around 26 July 2010 due to work-related stress.
8. The respondent allowed the claimant a period of grace while she returned to employment in or around 26 July 2010 to familiarise herself once again with her position. The fourth probationary review meeting was held on 23 August 2010 between the claimant, Muriel Tafts, and Noreen Baker. After the meeting of 23 August 2010 Muriel Tafts and Noreen Baker held a meeting to discuss the outcome of the meeting of 23 August and they concluded that the probation extension requirements in respect of performance had not been met.
9. By a letter dated 31 August 2010 the claimant was informed that she had not improved to the level required for her post and concerns remained in various areas of her work performance. She was told that before a final decision would be reached she would be invited to a meeting at which she could formally respond to the concerns. This meeting was to be a formal performance probationary review meeting after which a decision would be made as to whether she had successfully completed probation.
10. A meeting was held on 9 September 2010 and the claimant put forward information for consideration by Muriel Tafts. By a letter dated 10 September 2010 the claimant was informed that her contract of employment was terminated by means of a probationary termination on 17 September 2010 as Muriel Tafts and Noreen Baker considered that she had not shown sufficient improvement in work performance to merit being confirmed in her post.
11. The claimant was informed of her right to appeal this decision and duly did so. The appeal hearing took place on 13 October 2010 and by letter dated 18 October 2010 the claimant was informed that her appeal was not upheld.
12. The tribunal did note that these events also took place against a background of a grievance being raised by the claimant in or around 11 February 2010 concerning her role, job description, work load and stress, probation and lack of support. A grievance hearing was held on 15 February 2010 and by a letter dated 26 February 2010 the claimant was notified that her grievance had not been upheld.
13. The claimant appealed this decision by letter dated 10 March 2010 and the appeal meeting took place on 13 April 2010. By a letter dated 29 April 2010 the claimant was notified through her union representative that the appeal had not been upheld and that she had a further right of appeal. The claimant exercised this appeal and the Stage III grievance appeal hearing was heard on 3 June 2010. By a letter dated 18 June 2010 the original decision was upheld. Very little oral evidence was given to the tribunal about the sequence of events of the claimant’s grievance and how it was dealt with. The tribunal is however noting the sequence of events as some evidence that the claimant’s grievance was dealt with by the respondent in an appropriate fashion, although the claimant obviously did not agree with the outcome.
14. Additionally the tribunal was aware that there was a separate disciplinary issue about the claimant soliciting a testimonial from GPS Colour giving positive feedback relating to her work performance. As a result of this allegation (which the claimant did not deny) an investigation was held on 5 May 2010 and a disciplinary meeting took place on 27 May 2010. The outcome of the disciplinary meeting was a final written warning. This was appealed by the claimant and the appeal meeting was held on 6 July 2010. By a letter dated 8 July 2010 the claimant was informed that her appeal was not upheld. Once again the tribunal heard very little oral evidence from parties about this issue, but it was referred to in the submissions and has been noted by the tribunal as supporting the respondent’s view that the claimant was aware that her job could be in jeopardy.
CONCLUSIONS
Issue 1
Was the dismissal procedurally unfair?
15. Article 130A of the Employment Rights (Northern Ireland) Order 1996 provides that an employee who is dismissed shall be regarded as being unfairly dismissed if:-
(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
16. The claimant alleged that the respondent’s letter of 31 August 2010 failed to comply with the statutory procedures in that the employer must set out in writing the alleged conduct, characteristics or circumstances which lead him to contemplate dismissing or taking disciplinary action against the employee. The tribunal considered this letter and in particular the following section:-
“I am of the view that you have not demonstrated a sustained improvement to the level required for a band 6 post and concerns remain in the areas of delegation, time management, planning and following management instruction. Accordingly you have not satisfactorily completed your probationary period and cannot be confirmed in post.”
17. The claimant contended that the letter was not clear that she was being told that she was at risk of dismissal. In Alexander v Bridgen Enterprises the EAT stated:-
“At step one the employee simply needs to be told that he is at risk of dismissal and why”.
Rather than saying this explicitly Muriel Tafts said “you have not satisfactorily completed your probationary period and cannot be confirmed in post”. Her letter went on to state “a decision will be made as to whether you have successfully completed your probation”.
18. In the case of Zimmer v Brezan the EAT confirmed the approach taken in Alexander v Bridgen Enterprises and stated:-
“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.”
19. Plainly the letter did not explicitly refer to dismissal. However, in the case of Cartright v Kings College London the Court of Appeal stated:-
“I accept that if, upon its true interpretation, it was implicit in the letter that, in those circumstances, dismissal for redundancy would or might follow, the Step 1 requirements would be met”.
Therefore this authority shows that if it can be implied from the letter that dismissal might follow then this will satisfy the requirements of the statute. While being concerned that the Step 1 letter was not as explicit about dismissal being a possibility as the previous authorities suggested, the tribunal accepts that it was capable of being implied (by the letter of 31 August 2010) that dismissal could be an outcome. However, the tribunal has noted that this letter should be read against the previous extension of the claimant’s probation. Therefore, it could be validly argued against this proposition that dismissal was not necessarily the outcome of this letter. Potentially the claimant’s probation could have been extended again. Indeed this was what her union representative argued for at one stage in the procedure. However, whilst having this reservation about the terms of the letter, the tribunal accepted that after a lengthy cross-examination, the claimant knew her job could be at risk. Brief reference was made by the respondent’s counsel to the claimant asking for a testimonial from GPS Colour. The minutes of the investigation confirmed that the claimant admitted that this testimonial would affect whether she had a job or not. The claimant did not deny in cross-examination that she said this and that this related to a period of at least seven months before her contract was terminated. The claimant did try to resile from this admission in her evidence but the tribunal accepts that the request for a testimonial from GPS Colour was satisfactory evidence that the claimant knew that her job was at risk. Additionally, the minutes of a meeting of 1 February 2010 had an addendum added by the claimant herself which said:-
“NH wanted to know if she came to the meeting at the end of February would she be surprised with dates like the current meeting and she would enter the meeting not knowing if she would have a job or not.”
The tribunal, on the balance of probabilities, and taking account of these two pieces of evidence, considers that it is more likely than not that the claimant knew that failing to satisfactorily complete her probation would lead to her not having a job.
Issue 2
Would the claimant have been dismissed anyway?
20. Even though the tribunal has accepted that the claimant knew that dismissal was a potential outcome on foot of the letter of 31 August 2010, the tribunal also considers that it was clear on the evidence that wording of the letter made no difference to the eventual outcome. By Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996 a 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.
21. This means that we have to be satisfied on the balance of probabilities that the employee would have been dismissed anyway. The tribunal is satisfied on the balance of probabilities that the claimant would have been dismissed anyway and the reasons for this are contained in the following section of this decision dealing with the substantive reason for the dismissal of the claimant.
Issue 3
Reason for the Dismissal
22. By virtue of Article 130 of The Employment Rights (Northern Ireland) Order 1996 the employer has the burden of proof in showing:-
(a) the reason (or, if more than one) the principal reason (for the dismissal), and
(b) that it was 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.
23. Under Article 130(2)(a) a permitted reason for dismissal relates to the capability of the employee for performing work of a kind which he was employed by the employer to do which was the respondent’s reason for dismissing the claimant in this case.
24. The claimant’s job description outlined what the claimant was employed to do for the respondent including the kind of work she was employed to do and that her work programme would be subject to conflicting priorities, multiple deadlines and changes. “The job requirement” stated that advice would not always be available and guidelines would not always be available. This leads the tribunal to infer that it was a reasonably senior post and the tribunal noted that the essential criteria include:-
“Self motivated with the ability to progress several tasks simultaneously and maintain timescales, including when working under pressure.
- Attention to detail and the ability to plan and prioritise.”
25. The claimant certainly had difficulties complying with these criteria. She did not meet deadlines and could not even meet extended deadlines. There were particular difficulties with two crucial tasks - the website project and the prospectus project. The employer put a specific action plan in place to ensure proper planning occurred. The claimant failed to amend the action plan to reflect changes. The claimant admitted that she did say when Muriel Tafts asked her how long it would take for a project to complete that she could not say whether it would take days, weeks or months. The tribunal accepts that the website project and prospectus projects were two projects that were crucial to the respondent. These would have been key tools by which the respondent would have attracted applicants for its courses in competition with other education providers in this field. The claimant handed over the website project as completed to Muriel Tafts but it could not be used. It was clear from the evidence that Muriel Tafts generally held the view that the claimant was not capable of performing the role outlined in the essential criteria and job description with the dismissal letter highlighting time management and planning as areas of underperformance which impacted negatively on her department’s delivery of its work and business crucial projects. On the basis of Muriel Tafts’ evidence the tribunal accepts that capability was the reason for the dismissal of the claimant.
Issue 4(a)
Did the employer act reasonably in treating the claimant’s performance as a sufficient reason for dismissal?
26. By virtue of Article 130(4) of the 1996 Order where the employer has proven the dismissal was for a potentially fair reason, as is the case here:-
“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.”
27. The dismissal letter stated the claimant’s underperformance “negatively impacted on the delivery of Department and business crucial projects including the website and full-time prospectus”.
28. The claimant was given an extended probationary period to meet the required standard. While there may not have been a power in the claimant’s contract to enable Muriel Tafts to do this, the tribunal accepts that this was in accordance with good industrial practice. In the view of the tribunal, it was entirely proper for the respondent to give the claimant a fair opportunity to improve. In this case, the claimant was given a very fair opportunity to improve. She could have simply been dismissed. Her probation was extended. She had a number of review meetings to monitor and mentor her. She was told the areas in which she needed to improve and given the opportunity to give feedback as evidenced by the lengthy notes of the various meetings.
29. The tribunal did have some reservations about the training materials given to the claimant as part of the monitoring and mentoring of her performance once she had failed to pass probation on the first occasion. These appeared to be highly theoretical and it appeared to the tribunal that the claimant required considerably more support to the extent that the respondent would have been required to effectively map out her job requirements in a very highly detailed fashion. This plainly was not consistent with the level of post held by the claimant. Moreover, the claimant was asked if further training was required and she said that it was not. She did not complain about the training but rather indicated that she had read the training materials and relied on them to show how she did not accept the issues the employer had raised:-
Was the reason for dismissal of the claimant a sufficient reason for her dismissal? The tribunal considers that it was. Whilst this was not a misconduct case (at least in relation to the overall situation regarding passing probation), and the decision in the case of BHS v Burchell is not of direct relevance, it still is useful to illustrate the procedure undertaken by the respondent. The respondent believed that the claimant was underperforming and has demonstrated that it had reasonable grounds to do so. Moreover, the respondent reached this decision after it had carried out as much investigation as was reasonable in the circumstances of the case by way of frequent review meetings at which the claimant’s performance was monitored. In short, and in accordance with good industrial practice the respondent gave the claimant every opportunity to improve and gave her assistance to improve but she did not do so. In these circumstances, the tribunal considers that the respondent acted reasonably and in accordance with equity and the substantial merits of the case in treating the inability of the claimant to perform the role as a sufficient reason for dismissal.
Issue 4(b)
Was it within the band of reasonable responses?
30. We consider that the decision was within the band of reasonable responses test postulated in the case of Iceland Frozen Foods v Jones. This was a decision made after an opportunity was first given to the claimant to improve her work performance, and was monitored and supported during the extended probationary period. As the claimant failed to improve her work performance, we do not consider that dismissal was outside the band of reasonable responses to the situation facing the respondent.
Issue 6
Was the dismissal generally procedurally unfair?
and
Issue 7
Did the claimant acquiesce in a variation to her contract or waive her right to object?
31. The claimant’s arguments under this heading were twofold. She said that the respondent had no ability under her contract of employment to extend her six month probation and alleged that the respondent’s capability procedure should have been applied. Plainly, on the face of the contract there was no power to extend the probation and the tribunal considers that the claimant affirmed this breach of contract (although it does consider that the respondent’s actions were in accordance with good industrial practice) by continuing to work. It was explicitly stated that the capability procedure did not apply to probationary employees. However, the tribunal has noted that at a later stage in the procedure, the claimant’s representative sought a further extension of her probation as an alternative to dismissal. As this is the case the tribunal considers that this completely undermines the claimant’s contention that this was a breach of her contract of employment and supports the tribunal’s conclusion that she accepted this variation of her contract. As we have accepted that the contract was varied and she remained on probation then the tribunal did not accept the claimant’s contention that the capability procedure should apply. Therefore, the tribunal does not find that the dismissal was generally procedurally unfair.
32. As we have found that the claimant was not unfairly dismissed whether procedurally or substantively, the question of contributory fault does not arise.
Costs
33. During the hearing the respondent confirmed that it intended to make an application for a costs order against the claimant and indeed renewed this in its submissions. The tribunal’s power to award costs is contained in Rule 40 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. In sub-paragraph 2 of that regulation:-
“A tribunal or Chairman shall consider making a costs order against the paying party where, in the opinion of the tribunal or Chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or Chairman may make a costs order against the paying party if it or he considers it appropriate to do so.”
The circumstances referred to in paragraph (2) are “…where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”.
Although it was submitted that a costs warning letter had been forwarded to the claimant, this was not supplied to the tribunal. The tribunal was not given any written evidence of the level of costs claimed by the respondent. Therefore, the tribunal does not consider that it is able to make a decision on the issue of costs without hearing further submissions and (if appropriate) evidence about these matters.
Chairman:
Date and place of hearing: 31 May, 1 and 2 June and 4 and 7 July 2011, Belfast.
Date decision recorded in register and issued to parties: