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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Drummond v Health Shield Friendly Society... [2011] NIIT 459_10IT (06 January 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/459_10IT.html
Cite as: [2011] NIIT 459_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 459/10
CLAIMANT: Paul Drummond
RESPONDENT: Health Shield Friendly Society Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr Ian Wimpress
Members: Mr John J McAuley
Mr Robert John Gunn
Appearances:
The claimant represented himself.
The respondent was represented by Mr B T McCluggage, Barrister-at-law, instructed by Hill Dickinson LLP.
Sources of Evidence
1. The tribunal received bundles of documents from both parties and heard oral evidence from the claimant, Mr Jonathan Burton, Mr Michael Carpenter and Mrs Maxine Wilson.
The Claim and the Response
2. In his claim form the claimant complained of unfair dismissal arising from the termination of his employment with the respondent. The claimant alleged that following his promotion to the role of Business Development Manager he was given unreasonable targets and was subjected to unfair criticism by his line manager at a Performance Development Review. He became ill due to stress and emailed his line manager and complained about the conduct of the Performance Development Review and corrupt practices within the organisation. Subsequently he asked the Human Resources Business Partner [Mrs Latham] to dismiss three executives on the basis that they had changed statistics in relation to the use of policies. The claimant’s company credit card was stopped and he was locked out of the system. The claimant considered that, during further email exchanges he was treated unfairly because he had disclosed corrupt practices. The claimant wrote to the Managing Director and indicated that he intended to resign because the situation had become intolerable. After the claimant was suspended for not attending a return to work meeting, he was the subject of a disciplinary process but was unable to access a friend to assist him because an email was circulated to staff instructing them to have no contact with him. The claimant raised a grievance and attended a meeting with Mrs Wilson [the respondent’s Finance Director] but did not receive an outcome of the grievance. He attempted to arrange a meeting with Mrs Wilson but it was cancelled at short notice. The claimant was invited to attend a disciplinary hearing and claimed that he did not receive the relevant documentation from the respondent and as a result he did not attend the disciplinary hearing. He was dismissed in his absence and he appealed against his dismissal. The claimant alleged that he provided a list of fifty questions which he wanted the appeal panel to address during the appeal but it refused to do so. The claimant also believed that the outcome of the disciplinary hearing had been predetermined on the basis of his subsequent discovery that his company pension was stopped before the initial disciplinary hearing was convened
3. It is apparent that these factual assertions gave rise to three heads of claim namely substantive unfair dismissal, automatic unfair dismissal on the basis of a public interest disclosure and automatic unfair dismissal on the basis of a failure by the respondent to adhere to the relevant statutory dismissal procedure.
4. In its response the respondent provided a detailed factual rebuttal of the claimant's claim which it is not necessary to set out extensively at this juncture. The respondent admitted that the claimant was dismissed for gross misconduct and contended that the dismissal was fair. In relation to the contentions set out in the claim form the respondent contended that the claimant put forward a convincing argument for appointing him Business Development Manager for Northern Ireland and that the Personal Development Review, while identifying areas where the claimant needed to improve, was supportive and positive. The claimant sent an email to his line manager alleging that he was coerced into the Business Development Manager role and alleging corruption on the part of the respondent. The claimant failed to substantiate the allegations of corruption that were said to form the basis for his instruction to dismiss three senior executives. In subsequent communications the claimant was abusive, insulting and threatening to the respondent's staff and as a result disciplinary proceedings were instigated against him. The claimant failed to attend his disciplinary hearing and was dismissed for gross misconduct. Following his dismissal, the respondent amended the claimant's pension details to show him as a leaver. The claimant appealed against his dismissal but refused to participate in the appeal unless he was first reinstated. The appeal panel refused to accede to this request and proceeded with the appeal. The appeal panel issued a detailed written decision in which it upheld the decision to dismiss the claimant for gross misconduct.
The Facts
5. The claimant commenced employment with the respondent on 26 June 2006 as a Development Officer. The respondent is an incorporated Friendly Society specialising in Health Cash Plan schemes for companies and individuals throughout the United Kingdom. It is a mutual organisation which is run for the benefit of its members. It is non profit making with surpluses being reinvested for the benefit of the membership. The respondent’s business is to provide health insurance in the form of a health cash plan to cover day to day health benefits such as visits to dentists, opticians and physiotherapists. It has an annual turnover of £20,000,000. It is mainly sold on a business to business basis. The organisation’s head office is in Crewe and has approximately one hundred employees. It had very little presence in Northern Ireland prior to 2006. The organisation is run by a board of directors and Mr Burton has been its Chief Executive Officer since 2001. Up until November 2009, the organisation did not have a dedicated Human Resources unit and the Human Resources function was undertaken by Mr Burton's personal assistant and Human Resources Business Partner, Mrs Rachel Latham. In November 2009, Mrs Tricia Goodchild was appointed as Human Resources Manager.
6. On 12 June 2008, the claimant sent an email to Barbara Tolly Brown and copied it to Mr Willets seeking a break down of Canyon Europe’s claims history for Sam Cooke of Canyon Europe as he wanted to put a case to his Managing Director to include the rest of the workforce in the scheme. As Mrs Tolly Brown was on holiday Mr Willets emailed Melanie Price, the Claims Manager, on the same date and asked her to provide the claims information to him. Ms Price replied to Mr Willets by email, copied to Mr McAndrew, on 16 June 2008 and stated as follows:
“Hi Dave
Don’t know how best to play this one.
Claims paid compared to the premium means that we are returning 39%.
Good for us (and its needed) but not particularly a good selling point to get everyone else on board.”
Mr Willets emailed Mr McAndrew on the same day advising him that Canyon were looking to add about 50 people to the scheme and asking if it was alright to provide the claims information. Mr McAndrew replied by email the next day as follows:
”I can’t see why we cannot improve these figures, but if you think that he will be happy with them then let him have them as they are.
It’s up to you.”
On 17 June 2008, Mr Willets emailed the claimant and provided him with the figures. He then made the following comment:
“I suggest that they slightly increase the figures to show better usage by the 49 members that we have.”
He then provided the inflated figures and asked the claimant what he thought. The claimant was understandably not happy with this suggestion and it would appear that as a result the inflated figures were not passed on to Canyon Europe.
7. Some restructuring and promotion took place in 2008/2009. On 21 August 2008 a congratulatory email was sent by Mr Woods, the Executive Director – Sales and Marketing, to four members of staff who were being promoted to their new positions with effect from 1 January 2009. Mr Willets was amongst those who were promoted. According to Mr Burton on 17 August 2008 the claimant had set out a convincing argument in an email to the respondent's Head of Business Development, Mr Willets, as to why he should be appointed to the position of Business Development Manager in Northern Ireland. As a result, the claimant was promoted to this position with effect from 1 January 2009. As a result the claimant was responsible to Mr P McAndrew, the Sales Director and Mr Willets became his line manager. The claimant’s promotion was announced by way of a congratulatory email sent by Mr Willets to all staff on 3 October 2008. The decision to promote the claimant to this role was influenced by his track record of bringing in companies in a "paid for" basis that is to say the company paid for the benefits rather than the employees. Normally it was paid for on the basis of voluntary contributions by employees. The position was based in Northern Ireland but the respondent had no office accommodation in Northern Ireland and accordingly the claimant worked from home. According to Mr Burton, the decision to appoint a Business Development Manager in Northern Ireland was part of a business strategy to increase membership and premium income in Northern Ireland which was regarded as having the capacity for growth with the right person involved. The claimant was regarded as the man who could deliver that growth. As a result of his promotion the claimant's salary increased from £23,000 plus commission to £28,597 with more scope for commission. Mr Burton denied that the claimant was coerced to take up this post. We did not have the benefit of Mr Willets’ testimony on this or any other aspect of the case.
8. In May 2009 Mr Willets conducted a Personal Development Review with the claimant which identified that the claimant needed to improve his sales performance. Mr Willets was supportive in his comments and told the claimant to keep up his good work with brokers, to continue to build relationships and to stay positive. Both the claimant and Mr Burton were disappointed that targets were not being met.
9. The claimant went off on sick leave on 1 June 2009 due to work related stress and was signed off by his general practitioner until 15 June 2009. Mr Willets emailed the claimant on 4 June 2009 and enquired whether he was returning to work on 15 June 2009 and offered support and help to assist his return to work. Mr Willets also asked him about a meeting that a client had been asking about on 15 June 2009 but stressed that he did not want the claimant to contact clients.
10. On 5 June 2009 the claimant responded to Mr Willets by email thanking him for his kind words, explaining the position with regard to the meeting and then launching into complaints about being coerced into the BDM role, the recent Performance Development Review and Mr Willets’ treatment of him. The claimant then stated as follows:
“This will not make pleasant reading but I need to get it off my chest! Firstly the attached correspondence was going straight to the FSA letting them see for themselves that senior management of this friendly society are anything but, proving that they could turn a blind eye to corrupt practices, paying only lip service to TFC’s. The reputation of Health Shield could have been discredited overnight by your stupidity. Believe me when I say the list was endless from contacting Declan Curry to get the statuette returned to Besma [British Excellence in Sales & Marketing Awards] on the grounds its unethical. Not to mention the press who would have a field day on the back of our corrupt Bankers and Politcians (sic).
In answer to your question Dave I do not know if I will be back on the 15th because my head is about to implode and I don’t know who to turn to for help! This is why I pushed you, wanting to be interviewed in the same way as other BDM’s perhaps now in hindsight it should have been done in the proper manner affording me the time to ask question to see if I could cope with the pressure which evidently cannot as I feel completely out of my depth.”
11. Mr Burton first became aware of the claimant's allegation that figures had been amended on 8 June 2010. He was surprised at the nature of the allegation, very disappointed that Mr Willets had agreed to do something so stupid which he regarded as unacceptable. Mr Burton subsequently issued a warning to Mr Willets about his conduct. Mr Burton was also concerned for the claimant's welfare at this time.
12. As a result of the claimant’s emails Mrs Latham emailed the claimant on 8 June 2009 saying that she was very concerned about him, noting that he was off sick due to work related stress and stating that it was therefore necessary to ensure that he was free from any work related activities. She also sought to reassure the claimant that her concern was to help him.
13. On 11 June 2009 the claimant emailed Mrs Latham and requested that she dismiss three senior managers for corruption. The email read as follows:
“Hi Rachel
I think it will be best to leave our chat until the middle of next week. That will give you time to dismiss Mel, Pete and Dave for deception and gross misconduct in allowing corruption into Health Shield Friendly Society
Kind Regards
Paul.”
No details of the alleged corruption were provided by the claimant.
14. At some time prior to 15 June 2009 the claimant left an inappropriate voicemail on his company mobile phone. The respondent became aware of this on 15 June 2009 and asked him to remove the message. The claimant failed to do so and as a result the respondent denied him access to his voicemail. All calls are recorded for training and security purposes and a transcript was made of a voicemail. It was not an appropriate message to leave on a voicemail.
“Hi Good afternoon, this is Paul from Health Shield.
As you’re probably aware my email address has been shut down by the regime. I went today to get something on expenses using my visa card. This has also been shut down. Not such a Friendly Society after all is it? If you do need to contact me please contact me on my personal email address which is pdbelfast@yahoo.co.uk. I’m sorry for the inconvenience that this has caused but there is no one more distressed than I am and I do apologise for the regime. Thank you. Bye.”
15. On 16 June 2009 the claimant sent a further email to Mrs Latham which stated as follows:
“Hi Rachel
I hope you are well.
I fail to understand why I have been vilified by the crooks in suits at senior management level. Tell them to stick their Barclay card as far up their hole as it will go – do they need reminding that it is they that are a bunch of dishonest bastard’s from the top down, not me. No doubt they will be wanting back their car, phone, lap-top and other belonging – fine! give me a day’s notice to gather it up.
I was so looking forward to sorting this out with you but its clear you do not have my best interests in mind only that of your masters, best to leave this till I return back to work.
PS Be sure to thank Karen for the 100 sheets of headed paper, they will come in handy!
Sincere regards
Paul”
16. The claimant remained absent from work and continued to send emails to managers and employees making personal insults and allegations.
17. The respondent sought to ascertain whether the claimant's behaviour was being caused by any underlying medical condition and to this end arranged for him to attend with an occupational health practitioner Dr Currie on 30 June 2009. Dr Currie provided a report in which he recorded the claimant’s symptoms of anxiety and insomnia which the claimant alleged started when his role in the company was adjusted, that he felt “coerced” into his promoted role and that he felt undertrained and was given insufficient support. The report also drew attention to anxiety due to concerns about the health of the claimant’s mother and his partner’s father and heavy alcohol consumption by the claimant between December 2008 and June 2009. Dr Currie advised that the claimant was approaching a level of health that would enable him to return to work when his current sick line expired. In relation to the abusive emails Dr Currie advised as follows:
"It is possible that he may have acted out of character during this time due to anxiety, insomnia and increased irritability. These symptoms have largely settled, and I would not expect this to be the case now."
Dr Currie recommended that the issues that the claimant perceived to cause him stress should be addressed at a return to work meeting. A meeting was arranged by Mrs Latham in Crewe on 23 July 2009.
18. On 3 September 2009 Mrs McAndrew made contact with the claimant in advance of his return to work which was due to take place at Crewe on 7 September 2009 in order to arrange a back to work interview with Mr McAndrew and Mr Willets. Training was also arranged for the claimant's first week back in work.
19. On 4 September 2009 the claimant sent a letter to Mrs Latham in which he made reference to Dr Currie having told him that a disciplinary investigation would be carried out on his return to work in respect of an abusive email which the claimant alleged was brought on by his company card being declined at his local post office. The claimant went on to allege that corruption was systemic within the organisation and falsifying figures. The claimant also referred to Mr McAndrews as “Pete the Cheat” and made various complaints about management in rather intemperate and inappropriate language.
20. On the same day, the claimant wrote to Mr Burton on a “without prejudice” basis stating as follows:
“My position within this friendly society has become untenable caused by your bad management and corrupt practices. Please contact my solicitor within the next 2 weeks to resolve this situation by way of compensating me for the failures to manage me in a proper ethical fashion, before things spiral out of control and my departure resonates throughout the industry and then some.
I expect my salary for September to be in my account on the due date together with any outstanding holiday and lieu payments.”
Both letters were delivered to the respondent’s head office in Crewe on 7 September 2009.
21. The claimant also sent an email to Mr Willets on 7 September 2009 copied to Mr Burton which contained the following comment:
“you were too busy kissing Peter’s lily white to notice what was in your box”
On the same day the claimant sent an email to Mr Philip Wood which he again copied to Mr Burton which read:
“Are you homophobic? As a gay man I have suffered prejudice all my life and usually from straight men.”
22. The claimant cancelled his hotel reservation and did not attend at head office on 7 September 2009 but on the same day he sent emails to Mr Willets and Mr McAndrew making allegations and personal criticisms in respect of both. He also emailed Mr Wood and complained about being excluded from the congratulatory email sent on 21 August 2008.
23. As a result of the claimant’s failure to attend his “Back to Work” interview, Mr McAndrew decided to suspend him on the basis of his unauthorised absence. Mr McAndrew wrote to the claimant on 7 September 2009 to advise him of his suspension. Mr McAndrew informed the claimant that the matter would be dealt with under the respondent’s disciplinary process on 15 September 2009 to discuss the reasons for the claimant’s unauthorised absence and the emails sent by the claimant to senior members of the management team on the same day. Mr McAndrew also asked the claimant not to contact clients, contacts or brokers during the period of his suspension. Mr McAndrew also advised the claimant that while he was suspended he would be removed from the respondent’s email system and that all emails would be re-directed to his line manager but that his company phone would remain connected as long as he acted professionally when contacted and did not set any unreasonable voicemail messages. The claimant’s company Barclaycard would remain available to enable him to arrange travel to the meeting. The claimant failed to attend the meeting on 15 September 2009.
24. Due to the “without prejudice” designation on the second letter of 4 September 2009 Mr Burton was not sure whether the claimant genuinely intended to resign. Mr Burton therefore wrote to the claimant on 18 September 2009 and asked him to confirm whether he intended to resign. Mr Burton also asked the claimant not to have any contact with other employees of the respondent for the time being.
25. The claimant responded to Mr Burton on 28 September 2009 in which he criticised Mr Burton, Mr McAndrew and the respondent's business generally. The letter stated as follows –
“It is abundantly clear that you’re just a jumped up accountant cause your right hand has no idea what mischief the left one gets up too (or so you say) it must be your unique style of management. I have been suspended darling! Did no-one tell you? Until further notice full pay by your Sales Director Pete the Cheat; see enclosed correspondence.
It’s my understanding that nothing has been put on the table thus far to help resolve this sorry mess and furthermore my suggestion was deemed not acceptable. Why 3 years, because that the length of time this friendly society has been lying to my face. Do you recall Pete the Cheat extending my probationary period? It was professionally done in a hotel corridor during our Christmas party under the influence of alcohol, Pete blaming it wholeheartedly on the board who decided upon it earlier on that day (your minutes will prove this one way or the other).
I have two words for you my dim friend – Damage Limitation. You couldn’t even blacken my name because I am duty bound under the FSA rules to report you and your dodgy dealings. Now before your watch goes down in Health Shields 132 year history as one unmitigated disaster. STOP LOOK and LISTEN you better sort this fiasco out once and for all. You need to get a compromise agreement signed ASAP and as much duck tape money can buy too rap it around my big gob.
Your board are more than happy spending members money, remember they threw you a surprise 40th birthday party in the luxury surroundings of Rockery Hall (45k all in if I’m not mistaken). Pete the Cheat took great delight telling us all he had secured the enclosure at Royal Ascot this year, he got everyone suites that were reserved for the disgraced bankers to entertain this board and invited IFA’s and their partners, very nice. It will be the donkey derby on pleasure beach Blackpool next year if your not careful mate, so scream if you wanna go faster for this Irish man is about to blow his load. I have got nothing to lose here and I grow seriously tired of your rhetoric mister.”
Mr Burton understood this to mean that the claimant did not intend to resign. He did not regard the claimant's letter to be a genuine attempt to resolve a workplace dispute and so informed his solicitors.
26. In view of the claimant’s allegations against the respondent and its staff, Mr Burton decided to hold an investigatory meeting and by letter of 29 September 2009 invited the claimant to a meeting on 6 October 2009 with the respondent’s Finance Director, Mrs Maxine Wilson, in order to identify whether the claimant had any substantive allegations to make and to determine how to move matters forward. Mr Burton advised the claimant that he could be accompanied by a colleague if he wished. The claimant replied by email on 30 September 2009 and confirmed that he would attend the meeting. He also requested that Mr Willets attend the meeting. The following day Mr Burton responded to the claimant’s request by email and indicated that Mr Willets’ attendance would be wholly inappropriate. Mr Burton reminded the claimant of the purpose of the meeting and stated that anyone accompanying the claimant should be supportive as opposed to someone mentioned in the claimant’s allegations. The claimant replied to Mr Burton on the same day seeking copies of the relevant documentation and asking for a list of questions to be produced and cross referenced with the documentation. The claimant asked for the documents to be emailed to him in pdf format. He also enquired whether the meeting would be minuted or recorded. The claimant followed this up with a further email on 5 October 2009 in which he stated that if he did not receive the information/agenda requested he would bring nothing with him and would not answer any questions. Mrs Wilson responded by email on the same day and stated that there was no agenda and she would not be asking him any questions as it was not a disciplinary or grievance meeting but was rather an investigatory meeting to identify the allegations that the claimant was making and their factual basis. She went on to indicate that she had hard copies of the correspondence and would work through it with him at their meeting.
27. The meeting with Mrs Wilson took place as scheduled on 6 October 2009. The claimant was given the option of being accompanied but chose not to be. As a result of the meeting Mrs Wilson determined that the claimant had made substantive allegations that required investigation. Accordingly she sent an email to the claimant on 8 October 2009 and informed him of the allegations that she had identified and that she had decided to instigate the grievance procedure on his behalf. The grievances identified by Mrs Wilson were as follows:
1. Inaccuracies in the reporting of claims data to customers.
2. Support and guidance given to you in the role of Business Development Manager.
3. Deterioration in the relationship with your line manager.
The claimant responded by email on 12 October 2009 and expressed his concern that the meeting had given rise to a grievance process given Mrs Wilson’s previous statement as to the purpose of the meeting. Mrs Wilson replied on 13 October 2009 and explained how the meeting had given rise to issues that she considered should be treated as grievances and asked him to let her know if he did not want them to be investigated as grievances. Mrs Wilson also indicated that she would be happy to meet with the claimant again after she had completed her initial investigations before concluding the process. In the event no such meeting took place. The claimant remained dissatisfied and sent Mrs Wilson several emails over the following days some of which were copied to other employees. He also sought contact details in respect of a Jackie Bostock which Mrs Wilson would not provide as Ms Bostock was a former employee. Mrs Wilson also instructed the claimant not contact staff other than herself until she had concluded her investigations.
28. On 27 October 2009 the claimant sent an email to Mr Burton which read as follows:
“At least big Phil brought home the bacon has that man no shame in excepting (sic) that award probably not, when he came onto me at Peckforton Castle he had the good grace to apologise for his outrageous behaviour the next day”
29. On 12 November 2009 Mrs Wilson wrote to the claimant and informed him of the outcome of her investigation. Mrs Wilson informed the claimant that she had identified a couple of minor issues to be remedied but that the claimant's allegations were not as serious or substantial as he claimed and could not be upheld. In relation to the specific matters under investigation, Mrs Wilson’s conclusions were as follows:
“1. Whilst a problem was identified concerning data reporting this was a one off incident that has been resolved. This was resolved in 2008. Furthermore I can find no evidence that this was an ongoing problem. I can find no evidence of “corruption” as you allege.
2. As a result of investigating your situation I have identified the need for Health Shield to have a formal procedure in place when employees are promoted internally. However I believe you have received ongoing support and guidance from David and Peter. You have been treated the same as other employees in your role.
3. I find that the relationship with your line manager has probably deteriorated but I attribute this to the manner in which you have conducted yourself in recent months rather than anything on the part of David.”
Mrs Wilson went on to express her concern as to how the claimant had chosen to express his concerns and communicate with the respondent and that she would be recommending that the respondent consider taking disciplinary action against the claimant in relation to his communications in recent months. Mrs Wilson concluded by advising the claimant of his right of appeal. Mrs Wilson also sent a copy of this letter to Mrs Latham, Mr McAndrew, Mr Willets and to the respondent’s solicitor and drew attention to her recommendation in relation to disciplinary action.
30. The respondent took steps to minimise the impact on staff of the
claimant’s emails by blocking the claimant’s emails and diverting them to a storage account. Mr McAndrew had previously removed the claimant’s access to the company email system when he suspended the claimant on 7 September 2009. It is not entirely clear when this occurred. According to the claimant this action was taken on 12 November 2009 and he drew attention to a test email that he sent on 13 November 2009 which was clearly diverted to a storage folder. This action did not serve to inhibit the claimant from sending further inappropriate emails and it is clear from subsequent correspondence that the parties continued to communicate by email and that any important emails ultimately reached the appropriate recipient.
31. The claimant did not seek to appeal Mrs Wilson’s decision. On 16 November 2009 the claimant emailed Mrs Wilson purporting to arrange a meeting with her on Monday 30 November 2009. He did not state the purpose of the meeting or seek Mrs Wilson’s agreement to it. The claimant booked return flights for himself departing on 28 November 2009 and hotel accommodation for two persons using his company Barclaycard.
On the same day the claimant sent an email to a colleague, Eileen Bayliss in which he stated:
“you recall Dave telling me you were immature you sulk and you alienate your team and he did not think you were up to the job, have you worked out who really said it, believe me Dave not that smart. Lets not forget Eileen it was you that came crying to me when senior management made a pass at you in the Castle Green Hotel”
32. Mrs Wilson’s recommendation of formal disciplinary action against the claimant was accepted and on 27 November 2009 Mrs Latham wrote to the claimant and informed him that he was required to attend a disciplinary hearing to consider allegations of gross misconduct against him on Monday 7 December 2009 at 11.00 am. The disciplinary charges were set out as follows:
“1. You have refused to carry out a reasonable management instruction. In particular:
1.1 you communicated with contacts and brokers of Health Shield during your sickness and suspension when asked not to do so on more than one occasion;
1.2 you were asked on a number of occasions to ensure you moderated the language used in your emails and to communicated [sic]in a professional manner.
2. You failed to attend a back to work interview with Peter McAndrew on 7 September 2009.
3. You have behaved in a threatening and abusive manner in your email communications with employees of Health Shield.
You have committed serious misuse of Health Shield facilities. In particular:
3.1 you have sent a number of emails containing libellous, defamatory, offensive, racist or obscene remarks;
3.2 unauthorised use of your Health Shield credit card in booking flights for two people and accommodation for two nights from 28 November 2009 in Manchester.
4. Your recent behaviour towards senior managers within Health Shield and individuals connected to the organisation has damaged the trust and confidence your managers have in you to perform your duties professionally and in the best interests of Health Shield.”
This letter was sent to the claimant both by post and email. Mrs Latham indicated that the supporting documentation would be sent to the claimant.
33. On Friday 27 November 2009 at 4.54 pm Mrs Latham emailed the claimant enclosing a copy of the disciplinary letter together with a copy of the staff handbook that the claimant had previously requested. Mrs Latham also responded to the claimant’s attempt to impose a meeting on Mrs Wilson by advising him that she had cancelled his flights and accommodation as he was not authorised to book them and he had not been asked to attend any meetings. Mrs Latham also advised that she had cancelled the claimant’s Barclaycard.
34. On 28 November 2009 the claimant emailed Mrs Wilson a message that read as follows:
“If you know whats good for you, you will attend the meeting on Monday or when I get back in front of this computer kiss your 145K job good bye, because I will take you all down the road, be ready for the killer blow.
Monday.”
On the same day the claimant forwarded an email to Mrs Latham which he copied to Mr Burton and 15 other staff members. Copies of the discipline letter of 27 November 2009 and staff handbook were attached. There was also a message which read:
“suck my big toe sweat heart.”
The claimant also sent a further email to Mrs Latham which read:
“My Dear Rachel
Get your facts right I have booked one flight for my meeting with Maxine on Monday. I will be charging my Company Barclay card for Sunday night accommodation and it better be honoured my love.”
The claimant also sent an email to Mr Willets on 28 November 2009 which he copied to Mr Burton, Ms Latham, Ms Wilson, Philip Wood, Mr McAndrew and eight other employees which read:
“Hi Dave
Did you forget to mention dickhead management how you left your car keys behind having to get them posted back how you left your wee black police book and that file?”
35. On 30 November 2009 the claimant left a voicemail for Mrs Latham which stated:
“Good afternoon it’s Paul Drummond. Look I just want to apologise, you know, for what I am about to commence tomorrow on you people. I am truly sorry….”
In response to the claimant’s telephone call Mrs Latham emailed a letter to the claimant at 5.33 pm on the same date. In her letter Mrs Latham stated that she inferred that the claimant was intending to bring the respondent’s reputation into disrepute by contacting clients with confidential information. Mrs Latham drew attention to the confidentiality obligation contained in the claimant’s contract of employment and reiterated the instruction given to the claimant on 7 September 2009 not to make contact with clients, contacts or brokers. Mrs Latham also reminded the claimant about the disciplinary hearing on 7 December 2009 and asked him to confirm his attendance by 5.00 pm Friday 4 December 2009 and identify his representative. This letter was also sent by post on 2 December 2009 and was delivered on 3 December 2009.
36. On 30 November 2009 the claimant emailed Mrs Latham and stated:
“U book my flights for next week sweet heart again business class and gary and iwill stay over on Sunday night city inn.”
Mrs Latham replied on 1 December 2009 and advised the claimant that he should make his own travel arrangements and that he would be reimbursed. She also asked if he intended to bring a fellow employee or trade union representative with him. In response the claimant emailed Mrs Latham and stated that his company email account had been shut down and asked her to let him know by letter the arrangements and who would be picking him up. The claimant also advised that he would like a B Brown with him at the meeting. It was not disputed that the claimant’s email account was shut down and incoming emails from the claimant were diverted to a separate account to avoid staff being upset. The line of communication with Mrs Goodchild was kept open however so that the claimant could remain in contact regarding the disciplinary proceedings.
37. The claimant subsequently made contact with the respondent’s clients and brokers and made allegations that he was being sacked for exposing corruption. In particular he sent an email of this nature to a Mr Sharrock of Westfield Health on 1 December 2009.
38. On 1 December 2009 the claimant also addressed an abusive email to Mr McAndrew which was emailed to Mrs Latham and copied to Mr McAndrew and Ms Goodchild which read as follows:
.
“Pete
You need to learn to keep your prick under control, Jackie tells me you tried it on with her. Its Declan time that statue must go back to Besma you arrogant whore master.”
39. On 2 December 2009 Mrs Latham wrote to the claimant and advised him of a change of venue for the disciplinary hearing. She also took the opportunity to set out the disciplinary charges again and enclosed a copy of the evidence pack. The delivery tag on this package read Z11429 0260 0GB. On the same day the respondent’s solicitor sent a letter by post and email to the claimant and asked him to cease and desist from making contact with clients, customers, contacts and employees. The claimant was also asked not to make statements and take action that was intended to damage the business or reputation of the respondent and/or cause individuals related to the respondent to feel harassed by the claimant. The letter made clear that if the claimant had genuine concerns he should first raise them with the respondent. The delivery tag on this package read SJ828861259GB.
40. On 2 December 2009, the claimant emailed the respondent’s solicitors and complained about the respondent contacting him at his private email address and indicated that if the respondent wished to contact him it should do so via Royal Mail recorded delivery. The claimant went on to refer to the respondent’s letter of 27 November 2009 as follows:
“You refer to a letter dated 27 November inviting me to a disciplinary hearing, I have not had sight of this letter and an attachment you said did not come with your email, please do not send it as it will not be opened, that or any other email from you or HS.”
41. On 3 December 2009, the claimant attempted to send a fax to Mrs Latham. He confirmed receipt of her letter of 30 November 2009 but claimed that he had not received her letter of 27 November 2009 and asked if it was recorded and had a tracker number. The claimant posted the fax sheet to Mrs Latham as he believed that her fax was not working.
42. On Friday 4 December 2009 Mrs Goodchild sent the claimant a copy of the second disciplinary letter dated 2 December 2009 by email to his private email address at 14.35. Mrs Goodchild stated that the letter of 2 December 2009 and the evidence pack had been posted to the claimant by recorded delivery on 2 December 2009 and suggested that he might need to collect it at the sorting office if he was not at home at the time of delivery. She also indicated that she would send out a further copy of the evidence pack in the general mail that night. On the same day, the claimant sent an email to Mrs Goodchild at 16.38 in which he stated –
“If you provide me with flights I would be delighted to attend your meeting unfortunately I spent all my money last weekend in Manchester and Christmas shopping today.
Many thanks
PS I am only in receipt of one delivery notice SJ828861259GB today which I will pick up tomorrow.”
43. A few minutes later at 16.43 the claimant sent a further short email to Mrs Goodchild in which he stated –
“PS I did not advise Rachel about my phone it was the girl on reception and it fell out of my hand into the canal accident do happen play back the recording that you always bang on about.”
This email is very significant as it relates to charge 7 in the second disciplinary letter and proves beyond pre-adventure that the claimant both received and opened the email with the second disciplinary letter attached. This is in direct conflict with the claimant’s various statements that he did not open the email attachments and his evidence to the tribunal that he was unable to open attachments because he did not have the necessary software on his computer. Whatever problems there were with regard to the claimant’s receipt of the evidence pack, we are entirely satisfied that he received both disciplinary letters by email and both opened and read their contents. It also impacts upon the claimant’s general credibility and in particular his accounts in relation to the non receipt of the evidence pack.
44. Mrs Latham wrote to the claimant on 4 December 2009 and informed him that due to his behaviour since its letter of 27 November 2009 the respondent was adding a number of further disciplinary charges to be considered at the meeting on 7 December 2009 as follows:
“6. Threatening to bring Health Shield into disrepute and/ or take action with the deliberate intention of causing Health Shield financial loss and/or damage to its reputation. In particular threatening to make contact with clients to make false and/or misleading statements.
7. Serious damage to company property i.e. you advised Rachel Latham on Monday 30 November 2009 that you had thrown your company mobile phone & credit card into the Manchester Canal over the weekend.
8. Failure to follow a reasonable management instruction i.e. several management requests that you do not contact clients, brokers or contacts (including Health Shield employees). You were advised that to disregard this request may constitute gross misconduct.”
The letter set out all of the charges including the original charges and enclosed a copy of the original evidence pack together with supporting documentation in relation to the additional charges. The letter and the evidence pack were sent to the claimant.
45. Mrs Latham also posted a further copy of her letter of 2 December 2009 together with the evidence pack to the claimant on 4 December 2009. The claimant sent this back to the respondent marked ”Return to Sender Sorry” in red ink. The Royal Mail affixed a stamp which indicated that they were unable to deliver the item because it was refused and the addressee was unknown. The claimant confusingly attached the Royal Mail’s “Sorry, you were out” card dated 3 December 2009 to the back of the envelope. This related to Mrs Latham’s letter of 2 December 2009 in which the three further charges were added and which the claimant collected at the Royal Mail Sorting Office on 10 December 2009.
46. The claimant emailed Mrs Goodchild on Saturday, 5 December 2009 and stated that there was no evidence pack and that there was just a letter from Hill Dickinson (delivery notice SJ828861259GB). This was the letter of 2 December 2009 from Hill Dickinson to the claimant which he picked up and signed for at the Royal Mail’s Tomb Street Sorting Office on Saturday, 5 December 2009 at 13.09 pm.
47. On Sunday, 6 December 2009 at 10.42 pm the claimant emailed
Mrs Goodchild as follows:
“Hello Tricia
It is with regret that I cannot attend your hanging tomorrow for the following reasons.
· I still have not received your letter inviting me to a disciplinary meeting. You are not allowed to use this private e-mail you have been told keep it up and I will report you to the police for harassment, you shut my company e-mail down remember.
· Your evidence pack Z1142902600GB is not in my possession due to the fact the post man put the card into my neighbour’s mail box 2 above mind (must get them boxes numbered, always happening) Only got the card tonight, I will get the pack tomorrow and review it next week or the week after.
· Mr McAndrews has told the company no one is allowed to talk to me so it is difficult to get a colleague to come to the meeting to support me in my hour of need as they are all frightened for their jobs. I asked for this to be retraced back in 9 Sep 09.
· Sales staff do not book their own flights it is done by the office staff.
· I am also getting my roots done at 11.
Hugs and kisses
Paul”
48. The disciplinary hearing took place as scheduled on 7 December 2009.
It was chaired by Mr Burton and Mrs Goodchild was also present. The claimant did not attend. In his evidence to the tribunal the claimant attempted to make the case that he had contacted Mrs Goodchild on the morning of the hearing to seek a postponement. The respondent’s telephone records were checked and revealed that the claimant made only one telephone call to the respondent on 7 December 2009 and that was timed at 8.57 am. The call was picked up by Dominique Gabrielli. The claimant asked to speak to Gwen (McAndrew) and when Ms Gabrielli advised that she was not at her desk the claimant left a message with her in which he stated that he had still not received his new phone and wanted to know how long it would be. The tribunal had the benefit of hearing an audio recording of the call and a typed transcript.
49. On the basis of the claimant’s communications in advance of the hearing Mr Burton was satisfied that the claimant had deliberately and unreasonably failed to attend and therefore Mr Burton decided that it was reasonable to proceed in the claimant’s absence. Mr Burton carefully considered each of the charges and concluded that the claimant was beyond reasonable doubt guilty in respect of each of the charges save for charge 7. Although Mr Burton considered that the claimant was probably guilty in respect of charge 7 he did not uphold it because the allegation was not wholly proven. We pause to observe that Mr Burton appears to have been seeking to apply the criminal standard of proof rather than the civil standard which is generally used in domestic disciplinary proceedings but this merely gave the claimant a benefit that he was not necessarily entitled to. Having found the claimant guilty of all but one of the charges Mr Burton determined that the claimant was guilty of gross misconduct and summarily dismissed him with effect from 7 December 2009.
50. The claimant was notified of Mr Burton’s decision by letter dated 8 December 2009. The letter was also sent by email on the same date. The letter informed the claimant of his right of appeal. On 8 December 2009 the claimant also sent an email to Mr Burton in which he stated as follows:
“I am truly sorry for humiliating you over the week end in front of the whole company but you were well warned. Now before I use your headed paper and do it 100 times more in front of your tailored customer’s best sort this out my friend. You have until 18 December 2009 or my Christmas will be very busy.
You have my solicitor’s details.”
The claimant received Mr Burton’s decision letter on 9 December 2009.
51. On 8 and 9 December 2009 the claimant contacted Mrs Goodchild by telephone. In the course of the phone call on 9 December 2009 the claimant made unpleasant and abusive remarks. The tribunal heard an audio recording of this call and also received a transcript. We do not propose to embarrass the claimant by repeating what he said here but it was no way to speak to anyone either on the phone or in person. The claimant quite properly apologised to the tribunal for his behaviour although this was obviously some time after the events in question and does not begin to excuse his behaviour. Understandably Mrs Goodchild sent an email to the claimant on the same date advising that she was no longer prepared to take his telephone calls.
52. On the same date the respondent became aware that the claimant had sent at least fifteen emails to the respondent’s clients and employees. Mrs Goodchild was also the recipient of twelve missed calls from the claimant notwithstanding her instruction to him. The claimant’s behaviour was reported to the Cheshire Constabulary who warned the claimant about his behaviour.
53. According to the claimant he collected Mrs Latham’s letter of 2 December 2009 on 10 December 2009 and sent it back to the respondent. It was marked ”Return to Sender Sorry” in red ink. The Royal Mail affixed a stamp which indicated that they were unable to deliver the item because it was refused and the addressee was unknown. The claimant confusingly attached the Royal Mail’s “Sorry, you were out” card dated 3 December 2009 to the back of the envelope. This would appear to relate to Mrs Latham’s letter of 2 December 2009 in which the three further charges were added and which the claimant collected at the Royal Mail Sorting Office on 10 December 2009. The claimant recorded the following comment when signing for it – “Tricia Goodchild evidence pack missed delivery - card put into my neighbours mail box by mistake”.
54. Following the claimant’s dismissal the respondent amended the claimant’s pension details with Aviva on 11 December 2009 to show him as a leaver.
55. On 17 December 2009 the claimant appealed the decision to dismiss him. By letter dated 22 December 2009 the respondent invited the claimant to attend an appeal meeting before a panel of the respondent’s Management Board in London on 15 January 2010. The claimant responded by email dated 23 December 2009 stating –
“Fab a Friday night in London…”.
On the same date the claimant emailed the respondent’s solicitor and Mr Burton stating –
“Hi gents, flights and hotels booked looking forward to our meeting.”
56. On 4 January 2010 the claimant emailed the respondent a fifty point list requesting documents, posing questions and making comments. Mrs Goodchild responded on 5 January 2010 and indicated that the claimant could raise these matters at the appeal meeting and that she was forwarding the list to the appeal panel. Mrs Goodchild provided the claimant with one document that she considered relevant to the appeal but refused to provide the other documents sought on the basis that these were not relevant to the claimant’s dismissal or appeal. The claimant emailed Mrs Goodchild on 6 January 2010 and thanked her for her help, referred to item 18 on the list and referred to the prospect of a future tribunal hearing in Northern Ireland. Later that day Mrs Goodchild emailed the claimant a copy of item 18 which the respondent’s IT Manager had managed to trace. Further emails were exchanged in relation to other items on the list.
57. The appeal hearing proceeded as scheduled on 15 January 2010. The appeal panel was comprised of three non executive directors – Mr Michael Carpenter, Mr Alex McKinnell MBE and Mr Brian Stringer. It was chaired by Mr Carpenter. The claimant attended with his companion, Lisa Benbow, an employee of the respondent.
58. At the start of the hearing Mr Carpenter asked the claimant if he was content for an audio recording of the hearing to be taken. The claimant would not agree to the hearing being recorded and the panel therefore made its own handwritten notes instead. Mr Carpenter then went on to explain to the claimant that as the disciplinary hearing had taken place in his absence the panel had decided that the appeal would be by way of a re-hearing and that all the evidence would be visited. The claimant stated that he had been illegally sacked and asked why the appeal was being held in London rather than Belfast. Mr Stringer pointed out that the claimant had emailed to confirm flights and hotel accommodation soon after he was notified of the hearing and stated that he was looking forward to the meeting. The claimant’s objection was noted.
59. The claimant made a point about his contract being terminated illegally and then made reference to questions 41-50 on his list of questions regarding his non attendance on 7 December 2009. He also stated that the letter of invitation did not arrive until the day after the hearing. Mr Carpenter indicated that the best way to proceed was by going over all the allegations in the form of a re-hearing. The claimant did not adhere to Mr Carpenter’s direction and instead drew attention to his letter of 4 September 2009 which he described as his letter of resignation and the letter of suspension sent by Mr McAndrew on 7 September 2009. The record of the meeting does not contain any explanation of what point the claimant was making but it seems to us that he was suggesting that he could hardly be suspended as he had already resigned. Mr Carpenter pointed out that although the claimant’s letter of 7 September 2009 referred to his position being untenable, the word “resignation” was not used.
60. The claimant then complained about not being able to contact anyone to accompany him to the hearing on 7 December 2009 because Mr McAndrew had emailed staff on the same date and told them not to enter into discussion with him. Mr Carpenter brought the claimant back to his claim that he did not receive the letters inviting him to the disciplinary hearing until the day after it took place. Mr Carpenter drew attention to the attachments that accompanied Mrs Latham’s emails of 27 and 30 November 2009 to the claimant. In response the claimant stated that the respondent had closed down his business email account and that it should not have been using his private email address. The claimant also claimed that he did not open the attachments. Mr Stringer pointed out that the claimant had responded to Mrs Latham and drew attention to the claimant’s response of 28 November 2009 in particular in which he stated – “Suck my big toe sweat heart”.
61. Mr Carpenter confirmed that the claimant had received the invitation to the appeal and the evidence pack and indicated that the proper course was to go through the allegations. The claimant responded that he would not enter into negotiation. Mr Carpenter asked the claimant if he was saying that he was refusing to participate in the hearing. The claimant replied that he was illegally dismissed and that his prerogative was to go to an industrial tribunal. He added that if the respondent was to re-instate him he would go through the allegations. Mr Carpenter asked the claimant two further times if he was refusing to take part and the claimant confirmed that that was correct. The claimant is also recorded as stating that he was dismissed illegally and that it was his prerogative to go to an Industrial Tribunal. The claimant went on to make a point about his pension being stopped in November 2009 and was questioned about it. Mr Carpenter then indicated that he wanted to ask the claimant questions about two telephone transcripts dated 30 November 2009 of calls to Karen Roberts and Mrs Latham about the claimant’s company mobile phone and Barclaycard. The claimant refused to comment or answer questions and stated “No comment” twice when queried about this. In the light of the fact that the claimant had declined to take part further Mr Carpenter stated that the panel had no option but to consider the evidence that they had in front of them and form a view. In response the claimant compared it to the opportunity he had on 7 December 2009 and indicated that he was declining to participate on the advice of his solicitor. The claimant and Ms Benbow then left and the hearing concluded. In his evidence to the tribunal the claimant alleged that Mr Carpenter had passed him a copy of the email that he sent to Mrs Latham on 1 December 2009. The email was contained in the evidence pack that the panel had before it. Mr Carpenter had no recollection of passing the email to the claimant and did not believe that he did. He quite fairly pointed out that the claimant could have raised this at the time and if he had done so it would have been addressed. In view of the claimant’s clear evidence on this point and Mr Carpenter’s lack of recall, we take the view that it probably did occur but we are not prepared to accept the claimant had any basis for his concern about it. While its contents were highly offensive it was one of many in a similar vein and there was no dispute that the claimant was its author. The claimant also indicated that he did not believe that he would receive a fair hearing because Board members were considering the actions of fellow Board members. Mr Carpenter rejected this suggestion and pointed out that he did not owe his living to the respondent. We accept Mr Carpenter’s evidence that the panel dealt with the appeal fairly and were not influenced by connections with the respondent.
62. The panel proceeded to consider the substantive allegations and the evidence. On 27 January 2010 the panel issued its decision to the claimant. The panel set out its findings in a cogent and well reasoned eighteen page document. The main points were as follows:
(i) The panel noted that it did not accept reinstatement of the claimant as a pre-condition of his participation.
(ii) The panel did not consider it reasonable for the claimant to agree to attend the hearing in London and then object to the location on the day of hearing.
(iii) The panel was satisfied that the claimant received notice of the disciplinary hearing and that every reasonable effort was made to send him the evidence pack and other material in good time before the disciplinary hearing.
(iv) The panel considered all of the evidence afresh in respect of each allegation. The panel upheld all of the disciplinary charges that the claimant was found guilty of by the disciplinary panel save for 4(a) which related to the alleged serious misuse of the respondent’s facilities by sending a number of emails that contained libellous, defamatory, offensive or obscene remarks. The panel considered that as the relevant emails were sent from the claimant’s personal email address it was not sufficiently clear that this involved the use of the respondent’s facilities. In relation to charge 7 the panel took a different view to the disciplinary panel and was satisfied on the balance of probabilities that the claimant did throw his company mobile phone and credit card into the Manchester Canal. In so finding the panel took into account the claimant’s refusal to comment on the transcript of the relevant telephone conversation or answer questions about it.
The final paragraph of the appeal panel’s decision read as follows:
“We conclude that the evidence in respect of the allegations made in 1, 2, 3, 4(b), 5, 6, 7 and 8 above is sufficient to support those allegations. They demonstrate that, by reason of his conduct, Mr Drummond had destroyed the relationship of trust and confidence with his employer. In consequence, Health Shield was entitled to dismiss Mr Drummond summarily for gross misconduct and we therefore reject his appeal.”
63. As a result of the claimant's allegation about his pension being stopped prior to the initial disciplinary hearing Mrs Wilson made inquiries with the respondent's pension provider, Aviva. Aviva subsequently wrote to Mr Drummond on 9 February 2010 and advised him that it was notified by the respondent on 11 December 2009 that the claimant had left its employment. As a result the monthly premium that fell due on 15 December 2009 was not collected and therefore the last premium was paid on 15 November 2009. According to the author of the letter this was the explanation for the confusion caused by the claimant being marked as a leaver in November 2009.
64. On 23 August 2010 the claimant phoned the police to report an incident which occurred that day. According to the claimant two men came to his house one of whom told him to drop the case against the respondent. The man spoke in a Southern Ireland accent and made a gun like gesture with his right hand pointing it towards his head. The police did not contact the respondent about the incident and the respondent only became aware of it when informed about it by the tribunal office. As a result the respondent contacted the police and was advised that no further action was being taken due to lack of evidence.
Substantive unfairness
65. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-
“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,
(3) 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.”
66. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:
“[48]…The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes 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 Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[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 section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:
(1) the starting point should always be the words of section 57(3) 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 the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
[51] To that may be added the remarks of Arnold J in British Homes 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, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
This passage was cited with approval by the Court of Appeal in its recent decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.
Procedural fairness
67. Article 130A of the 1996 Order makes provision in respect of procedural fairness as follows:
“130A. - (1) An employee who is 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 failure by 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.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”
68. Accordingly, if an employer wishes to dismiss an employee it must follow the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. In the present case the standard procedure applies which is as follows:-
“Step 1: statement of grounds for action and invitation to meeting.
1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3. - (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.”
Compensation
69. Article 157 of the 1996 Order makes provision in relation to compensation as follows:-
157. - (1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.
(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
70. The Public Interest Disclosure (Northern Ireland) Order 1998 came into force in Northern Ireland in 1998 in order to provide corresponding legislative provision to the Public Interest Disclosure Act 1998 in England and Wales. This Order amended the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) to protect workers who disclose certain kinds of information in the public interest from being dismissed or penalised as a result of the disclosure. The relevant provisions are contained in Articles 67A, 67B, 67C, 70B, 130 and 134A of the 1996 Order and are as follows:
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—
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.
(3) In paragraph (2)(a)—
(a) capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.
(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.
71. 67A. In this Order a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.
67B. - (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of paragraph (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).
67C. - (1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith—
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to—
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.
70B. - (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) this Article does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of [Part XI]).
(3) For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by Article 67K.
134A - An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.
72. It can be seen that Article 70B is an important enforcement provision as it prohibits a worker to being subjected to any detriment on the ground that he has made a protected disclosure. However, in a case such as the present where the employee was dismissed, the 1996 Order provides at Article 134A that such a dismissal shall be regarded as automatically unfair if the reason or the principal reason for the dismissal is that the employee made a protected disclosure. The 1996 Order provides a broad definition of “protected disclosure” at Article 67B which extends to “any disclosure of information”. A qualifying disclosure must however fall within the statutory categories of disclosure set out at Article 67B (1) (a) – (f). The worker needs to show that he has no more than a reasonable belief that the disclosure of the information tends to show one of the statutory categories of what is termed in Article 67B(5) as “the relevant failure”. Thus the fact that allegations made are not factually correct is not sufficient to defeat a public interest disclosure claim.
73. The colloquially named “whistle-blowing” provisions were designed to encourage and protect employees who report concerns about malpractice in the workplace and elsewhere. There have been a number of cases in which the legal issues arising from public interest disclosures have been considered by the courts. The leading case in this sphere is the Court of Appeal’s decision in Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] IRLR 346 in which Lord Justice Wall held that the correct approach is as follows:
“An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information that he is disclosing meets the criteria set out in one or more of the subsections in [the Employment Rights (NI) Order 1996, Article 67B(1)(a) to (f)]. The second is to decide, objectively, whether or not that belief is reasonable. The third is to decide whether the disclosure is made in good faith.”
Lord Justice Wall went on to say that the word “belief” is clearly subjective but that it must be reasonable and cited with approval the decision of the Court of Appeal in Street v Derbyshire Unemployed Worker’s Centre [2004] EWCA Civ 964, [2004] IRLR 267 in support of this construction on the basis that the concept of “good faith” added an important element which protected employers.
74. In Kuzel v Roche Products Ltd [2007] IRLR 309, EAT, the Employment Appeal Tribunal in an appeal which focused on the burden of proof in such cases suggested the following approach –
(1) Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent, some other substantial reason, was not the true reason? Has [he] raised some doubt as to that reason by advancing the [Article 134A] reason?
(2) If so, has the employer proved his reason for dismissal?
(3) If not, has the employer disproved the [Article 134A] reason advanced by the claimant?
(4) If not, dismissal is for the [Article 134A] reason.
In answering those questions it follows:
(a) that failure by the respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under [Article 134A];
(b) however, rejection of the employer’s reason, coupled with the claimant having raised a prima facie case that the reason is [an Article 134A] reason entitles the tribunal to infer that the [Article 134A] reason is the true reason for dismissal, but
(c) it remains open to the respondent to satisfy the tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the tribunal is not that advanced by the respondent;
(d) it is not at any stage for the employee (with qualifying service) to prove the [Article 134A] reason.
This approach was subsequently endorsed by the Court of Appeal in the judgment on appeal from the Employment Appeal Tribunal - Kuzel v Roche Products Ltd [2008] EWCA Civ 380.
75. More recently the nature of protected disclosure was considered by the Employment Appeal Tribunal in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38. In particular the Employment Appeal Tribunal examined the difference between the provision of “information” that is to say conveying facts which may be protected depending upon the circumstances and merely making an “allegation” which would not be protected.
Claimant’s Submissions
76. The claimant submitted that it was clear that the way that he was promoted was wrong and that the respondent falsified figures in respect of Canyon Europe and a number of other organisations. The claimant criticised Mrs Wilson's investigation. The claimant sought to portray the respondent as being as guilty as him for the abusive emails that he sent. The claimant cast doubt on Mr Burton’s assertions that he took the claimant's allegations seriously and pointed out that none of the senior managers were disciplined over the affair. The claimant also placed reliance on Mrs Wilson's acceptance that it was wrong for her to send Mr Willets and Mr McAndrew copies of her findings by email in advance of sending the claimant a copy. He disputed her suggestion that this was done because they were the claimant's line manager and his line manager respectively and suggested without evidence that it was sent to them in order to obtain their opinion before sending the findings to the claimant. The claimant also criticised Mrs Wilson's failure to meet with him as discussed in respect of the grievance procedure which he believed was done in order to antagonise him. The claimant also drew attention to the three letters from Aviva which he submitted clearly demonstrated that his pension was stopped in November 2009 which in turn was evidence that the decision to dismiss him was predetermined. The claimant apologised for the emails which he attributed to stress caused by his mother's ill health and the respondent's failure to launch a professional investigation into the matters that he had raised. In his evidence to the tribunal the claimant described himself as “unhinged” but did not seek to suggest that this was due to the respondent's treatment of him but rather was due to his mother's state of health. According to the claimant his mother had suffered from cancer and a heart attack and as a result of her heart condition had undergone a triple bypass procedure. We were pleased to learn that she has now made a full recovery.
Respondent’ Submissions
77. (1) Credibility
In his submissions to the tribunal Mr McCluggage drew attention to a number of credibility points -
a Whether the claimant received a copy of the letter inviting him to the disciplinary hearing.
b Whether the claimant received a copy of the evidence pack prior to the disciplinary hearing.
c Whether the claimant received a phone call from Mrs Goodchild on the morning of the disciplinary hearing.
Mr McCluggage suggested that the claimant's evidence may be skewed by his feeling of being wronged. In this regard Mr McCluggage drew attention to the claimant’s evidence that he was appointed to a job without an interview and the allegations made by the claimant of criminal activities without any proper basis for saying so. Mr McCluggage also referred to the claimant’s allegation that Mrs Wilson's investigation was dishonest as being made without any proper basis, claiming that threats were warnings, saying that he knew that emails were going into a folder but still copied the emails to others including personal details about Eileen Bayliss and claims that he could not open attachments to emails.
Mr McCluggage drew particular attention to the claimant’s evidence about telephone calls with Mrs Latham informing him of the disciplinary hearing and with Mrs Goodchild on 7 December 2009. Mr McCluggage submitted that the evidence in relation to his telephone call to Mrs Goodchild on 7 December 2009 shows the claimant to be a devious individual who will twist and turn his evidence at every point. No mention was made in the lead up to the tribunal hearing of a telephone call with Mrs Goodchild on 7 December 2009 or indeed to a telephone call from Mrs Latham informing him of the disciplinary hearing. The calls give the lie to this. The recording of the call on 7 December 2009 reveals that the claimant was calling about a replacement mobile phone on the morning of the disciplinary hearing where he was to be dismissed which may be viewed as bizarre. Mr McCluggage submitted that the claimant's evidence disputing that he received both letters inviting him to the disciplinary hearing on 7 December 2009 should be rejected as should his evidence that he received the evidence pack on 5 December and that he made a last minute call to Ms Goodchild. Mr McCluggage accepted that the evidence pack issue was troubling given that the wrong date was stated in the disciplinary letter. Mr Cluggage submitted that the tribunal has a choice of finding that the claimant is lying or possibly mistaken or the respondent has falsified the notes of the disciplinary hearing. In this regard Mr McCluggage drew attention to the curious feature that no-one on the respondent’s side had given any thought to the statutory disciplinary procedures as they did not apply in England at that time. Accordingly, the notes of the disciplinary hearing would have to been changed cynically and dishonestly to show that the claimant only got the pack on 7 December 2009. One possible explanation is that the claimant in a fit of pique took delivery of the evidence pack on the Saturday 5 December 2009 and sent it straight back saying something to the effect that the address was unknown. The claimant also emailed Hill Dickinson and said that he would only accept things by recorded delivery. Mr McCluggage submitted that this gave an insight into the claimant's mindset at this time.
(2) What was the public interest disclosure?
Mr McCluggage submitted that the alleged disclosure was more in the nature of an allegation than information being provided or disclosed and was more in the context of sniping at his line manager. An example of this would be the reference to Declan Curry and the statuette in his email to Mr McAndrew on 1 December 2009. Mr McCluggage submitted that there was no public interest in such a comment but that it is rather an allegation made against his own manager in the form of a threat. In this regard Mr Cluggage placed reliance on Street v Derbyshire Unemployed Worker’s Centre and Cavendish Munro Professional Risks Management Ltd v Geduld. Mr McCluggage questioned the claimant’s motives and in particular queried whether the claimant had an ulterior motive given that it was followed up by threats over a number of months including threats seeking money. Mr McCluggage submitted that in a proper public interest disclosure case one would expect to see a reasonably temperate letter to Mrs Wilson, Mr Burton or someone at Board level saying what was going on and asking what was going to be done about it. Mr McCluggage submitted that this was very far removed from what occurred in this case.
(3) What was the reason for dismissal?
Mr McCluggage submitted that the reason for dismissal was the claimant's conduct. The respondent did not ignore the disclosure matter but rather conducted a distinct investigation into this allegation. Mr Burton gave his evidence on this issue in a considered and reasonable way. Mr McCluggage accepted that employers can always do more in cases of this nature but drew attention to the evidence that Mrs Wilson spent a week or two looking into things. Mr McCluggage submitted that this was not a case where the employer was trying to sweep things under the carpet and that when disciplinary proceedings were taken the employer was focussing on the right issues.
(4) Fairness of Dismissal and Statutory Dismissal Procedures
Mr McCluggage submitted that the Step 1 letter met all the elements of Step 1 both on 27 November 2009 and 2 December 2009. The Step 1 letter also satisfies Step 2 as well as it specified the basis of the allegation. Mr McCluggage also relied on paragraphs 17 to 22 of the Employment Appeals Tribunal’s decision in Ingram v Bristol Street Parts [2007] EAT 0601/06 and paragraph 21 in particular to the effect that employers are not required to provide in advance all the evidence on which they intend to rely. Mr McCluggage submitted that it is not necessary for an employer to produce every bit of evidence to satisfy Steps 1 and 2 of the statutory procedure. Mr McCluggage reminded the tribunal that the claimant’s attention was drawn to each allegation relied upon by the respondent to show that the claimant knew why these matters were being alleged against him. The claimant was also provided with a decision in writing and advised of his right of appeal. Therefore all three steps were satisfied. Mr McCluggage also invited the tribunal to conclude that the claimant received the evidence pack as well.
(5) Ordinary Unfair Dismissal
Mr McCluggage submitted that the Burchell test was made out. Mr Burton gave the matter thoughtful consideration. This is demonstrated by his decision to find in favour of the claimant in respect of the allegation that he threw the company mobile phone and credit card in the Manchester Canal. Mr Burton gave a rational basis for his finding in respect of each allegation. The tribunal might disagree and consider that a final written warning would have been more appropriate but in accordance with Rogan the matter must be judged from the perspective of the employer. It is all the more reasonable decision if the employee does not turn up for the hearing to say why he should not be dismissed. It might have been interesting if the claimant had turned up, saying that he was very sorry and that he was under great personal stress at the time. Some employers might not have dismissed him but the test is whether a reasonable employer would have dismissed the claimant. The claimant also had the benefit of a full appeal hearing which he chose not to participate in. In this regard, Mr McCluggage relied on the decision in Taylor v OCS Group Ltd [2006] IRLR 615 where a review hearing as opposed to a full re-hearing on appeal was held to be sufficient.
(6) Polkey
Mr McCluggage submitted that even if his submissions were not accepted there was a real Polkey issue as it was the tenor of the claimant's evidence that by September 2009 he felt that bridges had been burned. Even if the claimant had not been dismissed on 7 December 2009 he would not have gone back to work for the respondent. The claimant's conduct was utterly outrageous and no employer could tolerate the claimant's rude, bullying, intemperate, harassing behaviour.
(7) Contributory Conduct
Mr McCluggage submitted in the alternative that this is plainly a 100% contribution case.
(8) Remedy
Mr McCluggage was content to leave it to the tribunal to determine how far future loss should run. He pointed out however that on the basis of the evidence it would be February or March 2011 before the claimant was sufficiently recovered to hold down a job.
(9) Reduction in Compensation
Mr McCluggage submitted that on the basis of the claimant's failure to comply with the statutory procedure there should be a reduction of 50%. However, as the procedures then stop the claimant's failure to participate in the appeal has no bearing on this issue.
Conclusions
Substantive Unfair Dismissal
78. The claimant faced a formidable list of disciplinary charges arising from his behaviour which encompassed disobeying management instructions (communicating with contacts and brokers when instructed not to do so and failing to moderate his language in emails and to communicate in a professional manner), failing to attend a back to work interview, behaving in a threatening and abusive way in emails to employees, serious misuse of the respondent’s facilities by sending a number of emails containing libellous, defamatory, offensive, racist or obscene remarks and the unauthorised use of the respondent’s credit card in booking flights and accommodation, behaviour towards senior managers and individuals connected to the organisation which damaged the trust and confidence his managers had in him to perform his duties professionally and in the best interests of the respondent, threatening to bring the respondent into disrepute and/or take action with the deliberate intention of causing the respondent financial loss and/or damage to its reputation (in particular threatening to make contact with clients to make false and/or misleading statements), serious damage to company property by throwing his company mobile phone and credit card into the Manchester Canal and a further failure to follow a reasonable management instructions not to contact clients, brokers or contacts including employees. The claimant did not attend his disciplinary hearing and attended the appeal hearing but did not participate as fully as he should have done. Notwithstanding the claimant’s absence from the initial disciplinary hearing Mr Burton found in his favour in respect of the allegation that the claimant threw the company mobile phone and credit card in the Manchester Canal albeit by unnecessarily applying the criminal rather than the civil standard of proof. Likewise the appeal panel scrutinised the allegations carefully and found that one charge was not made out but was satisfied using the correct civil standard of proof that the claimant had thrown his company mobile phone and credit card in the Manchester Canal. This is perhaps not surprising in view of the fact that the claimant was the source of this evidence. In his evidence and submissions to the tribunal the claimant did not seek to deny any of the allegations or directly attack the findings but rather criticised Mrs Wilson’s investigation, sought to place some of the blame for his abusive emails on the respondent, cast doubt on Mr Burton’s claim that he took the claimant's allegations seriously and drew attention to the failure to discipline senior managers. The claimant also sought to portray Mrs Wilson's failure to meet with him as designed to antagonise him and claimed that the decision to dismiss him was predetermined on the basis that his pension was stopped in advance of the disciplinary hearing. In terms of mitigation it seems to us that the claimant could have relied on his mother’s ill health and his concerns about the investigation of his allegation of figures being inflated as mitigation and/or explanation for his behaviour. The fact remains that the claimant did not attend the disciplinary hearing and did not participate properly in the appeal hearing. As a result the decision makers did not have the benefit of hearing about these mitigating circumstances. This was not the respondent’s fault. Having carefully considered the evidence we are satisfied that the respondent carried out a reasonable investigation of the matter and that both Mr Burton and the Appeal Panel scrutinised the evidence conscientiously which led them to conclude that the claimant was guilty of gross misconduct with some slight variation of the grounds which in itself evidences the careful manner in which they went about their task. We are wholly satisfied that the allegation of predetermination is baseless and the evidence adduced on behalf of the respondent explains clearly what occurred. The claimant’s concerns on the basis of what he was told about his pension were by no means groundless but the explanation provided in the correspondence from Aviva is both understandable and compelling. Nor are we persuaded that the claimant’s complaints of inconsistent treatment are made out. Mr Burton gave unchallenged evidence that warnings were administered to senior staff and while the behaviour of Mr McAndrew was clearly deserving of censure it pales in significance when compared to the claimant’s behaviour throughout this affair. There was no evidence that other employees in comparable circumstances to the claimant were treated differently. In our view the respondent has proved that there was potentially fair reason for the claimant’s dismissal namely misconduct, that it entertained a genuine belief in this misconduct and its belief in the claimant’s guilt in respect of the alleged misconduct was arrived at after a reasonable investigation which included both Mrs Wilson’s investigation and the subsequent disciplinary proceedings. There was no suggestion that the claimant’s behaviour did not amount to gross misconduct and in our view it clearly did. The claimant frankly admitted that at the time that he engaged in this behaviour he was “unhinged”. The tone and content of the claimant’s email correspondence would not be acceptable to any reasonable employer. It is a regrettable feature of modern life that one’s thoughts and feelings can be instantaneously communicated to colleagues and others. Restraint is needed and the claimant displayed none.
79. Automatic Unfair Dismissal – Protected Disclosure
An examination of the facts reveals that although the events that gave rise to the alleged protected disclosure took place in June 2008, the claimant did not raise an allegation of corruption until one year later on 5 June 2009. At the same time the claimant expressed dissatisfaction about his Personal Development Review in May 2009. The claimant followed up his allegation by emailing Mrs Latham on 11 June 2009 and requesting that she dismiss three senior managers for corruption without providing any substantiation for the allegation whatsoever. It is not disputed that at least one senior member of staff had suggested inflating certain figures in order to mislead a customer. However the fact that there was some basis for the claimant’s allegation does not in our view necessarily bring it within the realm of a protected disclosure. We have to determine what in reality was going on and in doing so we must take cognisance not just of the claimant’s initial allegations but his behaviour thereafter in order to determine whether this was a genuine protected disclosure. In this regard it is not without significance that the claimant’s subsequent communications revealed a clear ulterior motive in the form of thinly veiled threats as to the consequences of not paying him compensation. In our view none of the Article 67B reasons have been made out by the claimant even one assumes in the claimant’s favour that the allegation of corruption connotes criminal behaviour. We recognise that an employee may not be aware of the specific provisions in question at the material time and Article 67C affords the employee protection if the allegation is made in good faith. In the present case we cannot be satisfied that the claimant’s allegations were made in good faith. The initial allegation must properly be viewed in context namely against the backdrop of unfavourable comments by his line manager about his performance. The claimant was aware of the alleged “corruption” in June 2008 but chose to do nothing at that point in time. In fact it would appear that his unhappiness with what was proposed resulted in the issue being nipped in the bud. It was only when the claimant felt badly done by in a Performance Development Review of May 2009 that he threatened to bring his allegation of corruption to the attention of the Financial Services Authority. The subsequent threats cast further doubt on the claimant’s good faith and fatally undermine this aspect of his claim. The impression conveyed is of a disgruntled employee lashing out at his employer rather than a genuinely motivated public interest disclosure. Applying the Babula approach, we are not satisfied that the claimant believed that the information that he was disclosing met the criteria set out in Article 67B of the 1996 Order. Even if he did believe that the disclosure fell within the criteria that belief was not reasonable. Most importantly we do not believe that the disclosure was made in good faith. Nor are we satisfied in terms of Kuzel that the reason put forward by the respondent for the claimant’s dismissal is not the real reason. The claimant’s admitted behaviour gave rise to ample grounds for a properly directed disciplinary decision maker to dismiss the claimant. In this sense the protected disclosure aspect is inextricably linked with substantive unfair dismissal. As we have found the respondent has proved that the claimant was dismissed for a proper and lawful reason namely misconduct. This is not therefore a case of an employee making a protected disclosure and thereafter being dismissed by his employer ostensibly for some other permissible reason. We are therefore entirely satisfied that the claimant was not dismissed for making a public interest disclosure. We also agree with the views expressed by the Employment Appeal Tribunal in Cavendish that a mere allegation is not sufficient to qualify as a protected disclosure and that what is required is the provision of information. It is clear to us that the claimant was engaged in making allegations rather than providing information particularly having regard to the timing and nature of the claimant’s statements.
Procedural Unfairness
80. We found the evidence in relation to the postal service of the disciplinary letters and evidence pack confusing to say the least. However, although there was a degree of dispute as to when the claimant received the mailed copies of the disciplinary letters and the evidence pack, it is absolutely clear that he received all of the essential material by email which he was able to and did open despite his protestations to the contrary. It is also important to observe that the claimant changed his story about the emails. In his email correspondence with the respondent the claimant criticised the respondent for contacting him at his personal email address and stated that he would not open the attachments that accompanied such emails. The claimant also complained in his email of 2 December 2009 that an attachment referred to was not sent to him while in the same email asking that it should not be sent to him and that if it was it would not be opened. In his evidence to the tribunal the claimant adopted a different position and suggested that he did not have the necessary software to open the respondent’s attachments. He attributed this to the poor quality of his personal computer and claimed that he normally used his sister’s work computer to access such material but was unable to do so when his sister was off work due to illness. We do not believe the claimant’s evidence on this matter. The claimant is not a computer novice but rather is someone who spent a considerable amount of time either legitimately corresponding with the respondent by email or sending abusive emails. The suggestion that he was unable to open email attachments is entirely lacking in credibility and is fatally undermined by his own responses to such emails. It seems to us that the respondent acted entirely reasonably in emailing the disciplinary material to the claimant particularly in view of the fact that the claimant was not office based and corresponded almost exclusively by email himself. Therefore we are satisfied that the respondent complied with Step 1 of the statutory disciplinary procedure by sending the claimant both discipline letters by email. It is clear that the respondent also intended that the claimant should have the evidence pack in advance of the disciplinary hearing. The respondent contended strongly that the claimant did in fact receive the evidence pack in advance of the disciplinary hearing but as copies were dispatched to him a relatively short period before the hearing we are not satisfied that the claimant received them either on time. However, as the decision of the Employment Appeals Tribunal in Ingram v Bristol Street Parts [2007] EAT 0601/06 makes clear it is by no means essential to provide such an evidence pack in order to comply with the statutory procedure and we are satisfied that the disciplinary letters that the claimant did receive provided him with all of the necessary information. Moreover, the evidence packs were comprised mainly of email correspondence sent by the claimant and he confirmed in his evidence to the tribunal that he would have been entirely familiar with the contents of the evidence packs. Accordingly there was no question of the claimant being treated unfairly or disadvantaged. If the claimant genuinely did not receive the evidence packs he should have sought an adjournment either in advance of the hearing or by attending the hearing and explaining his difficulties to the panel. The respondent also complied with Steps 2 and 3 by providing a comprehensive decision letter and by offering the claimant an appeal. The claimant availed of his right of appeal but did not participate as fully as he should have. In our view it is vital that employees who are subject to disciplinary proceedings attend all hearings and participate properly. It is the best opportunity to give their side of the story to the employer. Recourse to industrial tribunals should be the last resort.
81. In view of our conclusions as set out above the claim must be dismissed.
Chairman:
Date and place of hearing: 4-7 October 2010, Belfast.
Date decision recorded in register and issued to parties: