Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/00170_12IT.html
Cite as: [2012] NIIT 170_12IT, [2012] NIIT 00170_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 170/12

CLAIMANT: Philip James Blackmore

RESPONDENT: Adrian Norris, t/a “NB Autoparts”

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The tribunal Orders the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £13,724.94 in compensation for unfair dismissal.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Ms F Graham

Mr E Miller

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Nigel Marsh.

REASONS

1. The tribunal heard oral evidence from the respondent, Mr Adrian Norris and from the claimant, Mr Philip James Blackmore. The tribunal also heard oral evidence from Mr Nigel Marsh. The tribunal received into evidence agreed documents submitted on behalf of the respondent, with the consent of the claimant. Upon conclusion of the evidence, the claimant and the respondent’s representative made oral submissions to the tribunal.

THE ISSUE

2. In his claim to the tribunal dated 16 January 2012, the claimant claimed unfair dismissal. In the response to that claim, dated 13 February 2012, it was conceded that the claimant has been dismissed by the respondent but it was denied that the claimant had been unfairly dismissed. Accordingly, the tribunal had to determine the issue of whether the dismissal was fair or unfair. At the outset it was agreed and the tribunal determined that the proper respondent in the matter was Adrian Norris trading as “NB Autoparts”, being a sole trader.

THE TRIBUNAL’S FINDINGS OF FACT

3. In consequence of the oral and documentary evidence, the tribunal on the balance of probabilities determined the following material facts:-

3.1 The respondent, Adrian Norris, is a sole trader who trades as “NB Autoparts”. At the material time, that is to say late 2011, the respondent’s business employed the claimant and two other employees, these being Ms Maureen Hogg and Mr Robert McIlreavy. Administrative assistance and advice was provided on a consultancy basis to the business by Mr Nigel Marsh. Office and secretarial duties and general business administrative work was conducted by the employee, Maureen Hogg, who was a part-time employee who worked two days per week.

3.2 It became clear to the tribunal in the course of the respondent’s evidence, and also in the light of evidence given by Nigel Marsh, that the respondent was not well versed in or familiar with employment laws and procedures. At the material time the claimant was not provided by the respondent with a written statement of main terms and conditions of employment; there was no written disciplinary code. The respondent depended to a significant extent upon advice and assistance provided to him by Nigel Marsh. Nigel Marsh was both a family friend and he also acted as a business and employment consultant.

3.3. The claimant commenced employment with the respondent on or about 10 April 2009 as a sales assistant. The claimant’s job involved the retail sale of automotive parts. The claimant’s own employment background was in the motor industry, working in England and more recently in Northern Ireland, and he was quite familiar with this area of motor parts sales business. The employment seems to have been fairly uneventful for a period of time. The claimant portrayed himself to the tribunal as being the type of person who enjoyed what might be described as somewhat “extrovert” behaviour at work. In the working environment the claimant seems to have enjoyed throughout his career whistling and singing. The claimant candidly conceded, both to his employer and also to the tribunal, that he had used what he described as “industrial” language from time-to-time in his dealings and interactions with customers in this employment with the respondent. However, he qualified that concession in two respects. Firstly, he contended that he knew when it was appropriate to use such language, or not; secondly, the claimant contended that the respondent as his employer had never taken him to task regarding this type of behaviour prior to the occurrence of the events which now concern this tribunal.

3.4 The events which culminated in the dismissal of the claimant by the respondent appear to have commenced at the very end of July or at the start of August, 2011. These gave rise to what were effectively two consecutive disciplinary processes pursued by the respondent, these slightly overlapping in time, coupled with an intervening grievance complaint made by the claimant.

3.5 The first disciplinary process commenced on 1 August 2011 when the respondent wrote to the claimant outlining a number of stated concerns regarding the claimant’s work performance and inviting the claimant to attend what was described as being a “review meeting” on 4 August 2011 to address issues concerning a number of matters. These included the claimant’s working relationship with his work colleague, Robert McIlreavy, a customer complaint stemming from 11 July 2011 and also the respondent’s allegation that on 22 July 2011 the respondent had returned to the work premises only to find the shop unattended. That letter of 1 August 2011, in the manner in which things were expressed, made it clear that this was in effect a disciplinary hearing and that possible outcomes might have included disciplinary action or indeed the termination of employment.

3.6 A meeting was then held on 4 August 2011, which the claimant attended together with the respondent; Nigel Marsh was also in attendance. The claimant had written a letter to the respondent dated 1 August 2011 whereby he had raised, in some detail, a number of issues. There was regrettably no written record of the 4 August 2011 meeting available to the tribunal. By letter dated 25 August 2011 the respondent wrote to the claimant outlining details of the allegations that had been made and of the claimant’s own response to these matters. The first allegation, that relating to the claimant’s working relationship with Robert McIlreavy, was not made subject to any further action. However, the other allegations resulted in the sanction being imposed by the respondent in each case, of a first written warning. This warning was in relation to the matter of a specific customer complaint and the claimant’s stated general demeanour towards customers and, furthermore, in regard to the allegation of the claimant leaving the shop unattended. It was stated in the outcome letter of 25 August 2011 that the warnings were to remain on the record for a period of 12 months. The claimant was advised of his entitlement to appeal in the respondent’s letter.

3.7 By letter dated 15 September 2011, the claimant wrote appealing the disciplinary sanctions in respect of the two offences alleged and stating that the disciplinary action was unjust and unfair. The claimant went into some detail in his appeal letter. By letter of 9 November 2011 the respondent wrote to the claimant indicating that the appeal against the disciplinary sanctions would be heard on 16 November 2011.

3.8 Then followed the second disciplinary process. This was initiated, it appears, as a consequence of a document received by the respondent signed by the employee, Maureen Hogg. This document consisted of two typed pages and was a written complaint that seems to have been received by the respondent on 5 November 2011. The matter related to alleged conduct on the claimant’s part stated to have occurred on 2 and 3 November 2011. The document also made reference to the processing of a payment to a customer. Maureen Hogg’s document was copied and was annexed to a letter dated 14 November 2011 sent by the respondent to the claimant. That letter mentioned not only the foregoing written complaint on the part of Maureen Hogg but also alluded to another stated complaint on the part of Maureen Hogg. That latter concerned events allegedly occurring on 18 August 2011 which had not been committed to a complaint in writing but which had apparently been made verbally on 25 August 2011 to the respondent and to Nigel Marsh and which was then recorded in the letter. It was Nigel Marsh who appears to have prepared all of the documentation on behalf of the respondent in regard to this matter (and all other matters). The essence of that verbal complaint was specified in bold print in part of the respondent’s letter of 14 November 2011 sent to the claimant. In summary, the 25 August 2011 verbal allegations made against the claimant by Maureen Hogg concerned the claimant’s alleged use of foul language, banging of doors, kicking of the filing cabinet and head butting of doors, all of which Maureen Hogg stated to be offensive. She claimed that she had asked the claimant to stop this alleged behaviour on a number of occasions. The written November 2011 complaints concerned allegations of the claimant whistling, the use of foul language, singing and making excessive noise and other such conduct. The references thus were to alleged conduct both on 2 and 3 November 2011 and also alluded to earlier alleged conduct. This was characterised by Maureen Hogg as being “mental abuse/harassment” in her written document.

3.9 On 16 November 2011, the appeal hearing in respect of the first disciplinary process proceeded. This hearing was conducted by the respondent, with Nigel Marsh being in attendance. The appeal outcome was that the respondent determined that the original disciplinary decision and consequent sanctions stood. Also on that date, there was a grievance meeting held in respect of a grievance that had been raised by the claimant. The outcome of that was the upholding of the claimant’s grievance which related to certain dealings with customers. The respondent indicated that in future he would consider more carefully circumstances where he felt the need to help staff when dealing with customers. Unfortunately, for want of evidence, the tribunal had very little further information about that grievance process and there was no oral or documentary evidence given in respect of the matter to assist.

3.10 Regarding the second disciplinary process, on 18 November 2011 a meeting took place which, notwithstanding any other description or reference, appears to have been in effect an investigatory meeting. The claimant was accompanied to that meeting by Robert McIlreavy. At the meeting of 18 November 2011, the claimant asked for the investigation to be postponed as he felt that he was under considerable stress due to the other meeting that had been held earlier in that week. He stated that he felt harassed, intimidated and victimised by recent events and claimed that he had done nothing wrong. The meeting appears to have been brief and it was agreed that the investigatory meeting would then be rescheduled for 25 November 2011. The tribunal noted wording in a further letter dated 18 November 2011 inviting the claimant to the 25 November 2011 meeting, indicating expressly that the purpose of the meeting was entirely fact-finding and that it did not form part of the company’s formal disciplinary procedure but that the claimant might be invited to attend a formal disciplinary hearing at a later date.

3.11 By a document dated 14 November 2011 but which appears to have been received by the respondent on 25 November 2011, the claimant made a number of written submissions or observations concerning the allegations which had been made against him. It is not clear to the tribunal, for want of evidence, whether there was indeed any further investigatory meeting reconvened on 25 November 2011, that having been postponed from 18 November 2011. On balance, the tribunal concludes that the postponed investigatory meeting of 18 November 2011 indeed did not reconvene. By letter dated 29 November 2011 the respondent wrote to the claimant stating that a full investigation had now been completed and inviting him to attend a disciplinary hearing to be held on 5 December 2011.

The allegations made against the claimant were threefold and were in the letter specifically detailed as follows:-

“● Maureen Hogg is upset at the fact that you are, on a regular basis, banging doors unnecessarily, kicking the filing cabinet in the office and head butting doors. She finds this behaviour offensive and has asked you to stop on a number of occasions. You have stated in your written statement of 25-11-11 that on a couple of occasions you have banged your head on the door.

● Maureen Hogg is upset at the fact that you are, on a regular basis swearing and using language towards her that she finds abusive and offensive. She has asked you to stop on a number of occasions. You have stated in your written statement of 25-11-11 that you did on one occasion speak to her using foul language.

● Maureen Hogg is upset at the fact that you are, on a regular basis whistling in her presence but stopping when in other parts of the building. She feels this is being done to purposely annoy her as she has asked you to stop on a number of occasions.”

3.12 The letter continued that in the company’s view these allegations constituted gross misconduct offences as they were harassment of a fellow employee. The letter indicated that copies of witness statements from both Adrian Norris and Robert McIlreavy would be produced at the hearing and that these formed the basis for the company’s complaints and that the company would therefore rely on these documents in support of the allegations made against the claimant. The right to be accompanied and those to be present at the meeting were specified in the letter. It was also indicated that, as the allegations were gross misconduct offences, the outcome could result in the claimant’s summary dismissal from employment.

3.13 The claimant by letter dated 30 November 2011 requested copies of the witness statements. He appears to have been provided with (unsigned) copies of these witness statements at some undefined time prior to the disciplinary hearing commencing.

3.14 The disciplinary hearing then proceeded on 5 December 2011. It was attended by the claimant, accompanied by Robert McIlreavy, and by the respondent and Nigel Marsh. There was produced in evidence a written record which purported to be a complete record of the meeting as far as the respondent’s evidence went, and as also confirmed by Nigel Marsh. The record, in paragraph 2, appears to indicate that the first accusation (as listed above in paragraph 3.11 of this decision) was indeed accepted by the respondent as having no evidential basis. It seems (although that is not expressly stated in the record) that the first allegation was accordingly dismissed or was not further pursued.

3.15 In regard to the second allegation, what might be referred to as the “swearing” allegation, the written record indicates that the claimant did concede that he did swear with customers at times when he felt it to be appropriate and also when he felt upset or picked upon, as a defensive reaction. However, if the written record is indeed true and complete, as the respondent claimed it to be, it does not appear that the disciplinary meeting dealt expressly nor in any detailed fashion with the specific allegation of swearing levelled by Maureen Hogg against the claimant and in respect of the claimant’s personal interaction with Maureen Hogg, directly. The concentration of the focus of the meeting, from the record, appeared to be upon whether the claimant did or did not swear in the workplace, a more general focus.

3.16 In respect of the third allegation, what might be referred to as the “whistling” allegation, the focus of the meeting appears to have been directed towards the interaction between the claimant and Maureen Hogg. In this regard, the claimant contended that he had been whistling, but not loudly, and that this was the only time Maureen Hogg had mentioned anything about whistling. The claimant then went on to contend that he found the majority of complaints to be untrue and made with “intent of malice”, as he put it.

3.17 The written record of the meeting, as seen by the tribunal, was not contemporaneous but was composed afterwards by Nigel Marsh on behalf of the respondent. The outcome of the meeting is stated at the end of the record. The evidence from both Mr Marsh and also from the respondent was that the respondent took some time in order to reach a decision concerning the outcome of this disciplinary process. It is worth mentioning at this point that the tribunal found the respondent’s evidence on many occasions to be notably vague, to be imprecise and to be lacking in the type of specific and precise detail one might have expected. The tribunal cannot be entirely certain why that was the case and whether the respondent’s evidence intentionally lacked candour. However, the tribunal did find it both unfortunate and also curious to have evidence from the respondent expressed in what was determined by the tribunal to be an unhelpful, indeed seemingly evasive, a manner. On many occasions rather than providing a direct answer, the respondent referred the tribunal to Nigel Marsh for evidence as to any relevant detail. At times the evidence of the respondent varied from or did not support that of Nigel Marsh. One such illustration of this, for example, relates to the time taken to reach a decision upon the conclusion of this specific disciplinary hearing. Notwithstanding several invitations from the tribunal, in the exercise of its inquisitorial function, to be clear and specific, the respondent steadfastly refused to be drawn upon the issue of how long the dismissal decision took for him to achieve. Nigel Marsh in contrast was quite specific that the decision took between 30 and 60 minutes. There was also, it has to be remarked, an unsettling degree of vagueness on the respondent’s part concerning the details of how and when the drawing up of documents or records in regard to any meetings took place and details of when the witness statements were prepared. It is also worthy of mention that the respondent appeared to be very much dependant upon the input of Nigel Marsh regarding not just the technical formalities and the drafting of the correspondence and other documentation in the matter relating to the disciplinary and the subsequent appeal processes, but indeed in respect of all of the management dealings.

3.18 The disciplinary meeting held on 5 December 2011 also had before it a document dated 5 December 2011 prepared by the claimant. That indicated that the claimant had been, as it was put, “signed off by my doctor for the last two weeks which has caused me further stress due to financial reasons”. The document also dealt specifically, from the claimant's viewpoint, with the three complaints that had been levelled at the claimant in the disciplinary process, with the witness statements, and with other matters, these including alleged customer complaints and what has been referred to as the “swearing” issue. The document also alleged on behalf of the claimant that the allegations made against the claimant by Maureen Hogg were untrue and that these had been instigated by the respondent. The document stated that the claimant had been a manager in the past and if any sort of complaint had been made the claimant would have “nipped the situation in the bud” in the first instance and posed the question why that had not been done.

3.19 By letter dated 5 December 2011 the respondent wrote to the claimant indicating the outcome of the disciplinary hearing. This outcome was that the contract of employment was to be terminated, with effect from 6 December 2011. The respondent’s letter went into some detail concerning the reasons for the outcome, indicating that a full investigation of the facts had been made and that the allegations had been put and that the explanations were not acceptable. The specific finding it appears, from reading the respondent’s letter, seems to have been a finding of gross misconduct, that consisting of the harassment of another employee. The particulars detailed in the letter consisted of a finding by the respondent of regular swearing and using language towards Maureen Hogg. That was stated to have been supported by the concession on the claimant’s part that he did swear towards customers. The respondent's determination was that Maureen Hogg was upset that the claimant had been whistling in her presence purposely to annoy her and that she had asked the claimant to stop on a number of occasions.

3.20 By letter of 6 December 2011, the claimant wrote to the respondent requesting an appeal with respect of the two findings in respect of the allegations relating to the use of abusive language towards Maureen Hogg and the whistling directed to Maureen Hogg with the purpose of annoying her when she had asked the claimant to stop. In the claimant’s appeal request letter the factual basis for both of these findings was contested. The claimant's contention was that he had been victimised and treated unfairly and he also suggested that the witness statement of Robert McIlreavy used in the process was non-committal. The claimant contended that the respondent had failed to produce any evidence or witnesses to support the finding of gross misconduct for harassment of another employee. He also alleged that the respondent had not taken into account his own feelings and the alleged harassment of him by Maureen Hogg.

3.21 By further letter dated 10 December 2011 the claimant wrote to the respondent querying why there had been no investigation made into the behaviour of Maureen Hogg as it was contended by him that this would have had a bearing upon her credibility. The claimant also raised an allegation that Maureen Hogg had not spoken to Robert McIlreavy for three months and that had not been investigated. He further queried why customers had not been contacted regarding complaints; he felt that the respondent had failed to conduct a proper and an unbiased investigation. Accordingly, the claimant contended that he had been unfairly dismissed.

3.22 The appeal hearing requested by the claimant was granted and was duly arranged for 15 December 2011. It was attended, again, by the claimant, by the respondent, and by Nigel Marsh. The tribunal inspected what the respondent stated to be a complete written record of the appeal hearing on that date. In paragraph 2 of that written record it is recorded that the claimant noted the allegation that he used swear language all the time but claimed that this was not the case and that the accusation by Maureen Hogg was untrue. Paragraph 3 noted the respondent's allegation, as outlined by Nigel Marsh to the claimant at the hearing, regarding whistling which is recorded in the document as: “Also there have been numerous complaints against his attitude and treatment of people by Robert, customers, Maureen and Adrian. This evidence all points to a common issue with Philip’s personality and how he interacts with people.” Paragraph 4 mentioned the issues raised by the claimant in his letter of 10 December 2011 and recorded: “None of these issues have been investigated as no complaints have been received from customers or Robert about the items detailed in the letter”. The written record further records that the claimant stated that he was being dismissed over two allegations by Maureen Hogg, both of which he contended to be untrue. The problems listed were, the claimant contended, never an issue in the past. The claimant also stated that the items listed in reference to his swearing and personality were irrelevant. At the end of the written record it is recorded that the respondent had decided that due to the claimant’s behaviour, and as it is put in the document “… and complaints from Maureen, Robert, customers and himself that he would not overturn his decision”.

3.23 By letter of 15 December 2011, the respondent wrote to the claimant indicating that the original disciplinary decision stood. The reasons stated were that no additional information or facts were presented at the appeal meeting which would change the findings of the original investigation and that the points raised by the claimant in his letter dated 10 December 2011 were not relevant to the facts of the case and that these items had not been investigated as no complaint had been received from Robert McIlreavy or any customer in relation to the points made by the claimant.

3.24 After dismissal, the claimant signed on for Jobseekers Allowance. Having heard the evidence of the claimant in that regard, which was not challenged by the respondent, the tribunal’s finding is that the claimant not only adhered fully to the specific conditions attaching to the receipt of Jobseekers Allowance in the period following dismissal and up to the date of hearing, but also that he actively investigated and applied for a number of posts of employment not only in the area of work in which he had been accustomed to be employed over a number of years, but also in other areas of potential employment. The claimant give evidence in what the tribunal found to be a genuine and convincing manner concerning his willingness to travel quite some distance to work if suitable employment could be found. Notwithstanding these efforts, the claimant was still unemployed at the date of hearing.

3.25 For the avoidance of doubt, the tribunal would wish to make clear that at all times the respondent appears to have been personally and actively involved, in conjunction with Nigel Marsh, in obtaining any evidence underlying the disciplinary process, in conducting whatever investigation was conducted, in conducting the disciplinary hearings and also in conducting the disciplinary appeal processes. However, all of the documentation appears to have been prepared on behalf of the respondent by Nigel Marsh who was at all times present and was also actively involved in all matters of consequence. The respondent was quite clear in his evidence to the tribunal that he personally took all of the decisions and that Nigel Marsh was not the decision-maker in any part of the processes.

3.26 It was agreed, and the tribunal determined, that claimant's age at date of termination of the employment was 51 years; the applicable length of service was two completed years. The figure for gross pay as at the effective date of termination was £288.46 per week and the net pay figure was £241.53.

THE APPLICABLE LAW

4. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, the conduct of the employee. In the application of the statutory provisions regarding unfair dismissal as set out above, in matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42. The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is a “neutral” burden of proof) is stated 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.'

5. In misconduct cases the Court of Appeal in Northern Ireland in Rogan has also again endorsed the approach in British Homes Stores v Burchell [1980] ICR 303. This approach involves the tribunal addressing three primary questions:

· The first question is - has it been established by the respondent, as employer, the fact of that belief in the misconduct alleged?

· The second question is - had the respondent, as employer, in its mind reasonable grounds upon which to sustain that belief?

· The third question is - had the respondent, as employer, at the relevant time or at least at the final stage at which it formed that belief on those grounds carried out as much investigation into the matter as was reasonable in all the circumstances of the case?

THE TRIBUNAL’S DECISION

6. In matters of unfair dismissal, the decision-making of the tribunal is quite strictly circumscribed. This is so in that the tribunal is not permitted to substitute its own decision as to what it would have done under any of the prevailing circumstances of the matter. The tribunal’s task accordingly is to apply the statutory provisions mentioned above in the conduct of an objective assessment concerning whether or not there was instituted and was concluded a fair and a proper investigation of any disciplinary allegations levelled by the employer against the employee. In conducting this objective assessment, the tribunal is entitled to apply the so-called “band of reasonable responses” test to that task. That test is to be applied entirely objectively and not in any manner subjectively. A similar, objective, band of reasonable responses test is also to be applied to the tribunal’s determination of whether or not the decision to dismiss fell within or without this band or range of reasonable responses available to a reasonable employer.

7. One of the central issues in the matter relates to the proper identification (which the employer is obliged to do under the statutory provisions) of the precise reason or reasons for the dismissal. In this case the reason put forward for dismissal by the respondent may be broadly categorised as “gross misconduct”. In the absence of any disciplinary code committed to writing (not present in this case), in his evidence to the tribunal the respondent has expressly categorised this gross misconduct as being “obscene behaviour”. This categorisation by the respondent is the closest to any category expressly stated in the draft disciplinary code which the respondent contended existed in draft form at the time of the dismissal, but which had not been provided to any of the employees. This suggestion by the respondent clearly relates to the allegation that the claimant had used foul and offensive language towards the employee, Maureen Hogg. The respondent did not assist the tribunal by his apparent inability in giving his evidence to categorise the allegation of “whistling”, in reference to any type of coded misconduct. Whilst the code was not operative at the time, the tribunal was nonetheless interested in the respondent’s own categorisation of any misconduct.

8. The difficulty that the tribunal draws from this is that, in the presentation of the case, the respondent’s side have expressly identified the misconduct under scrutiny which resulted in the dismissal as constituting (what has been termed) the “offensive language” offence and the “whistling” offence, both of these matters relating to allegations specifically made on the part of Maureen Hogg. This was made quite clear from the oral evidence of the respondent and from Nigel Marsh and was further supported by the content of some of the documentation in evidence. What then concerns the tribunal (and it is here that the tribunal recalls that the evidence given by the respondent has been rather unsatisfactory) is that the allegations levelled towards the claimant throughout the course of the disciplinary process seem to have diverged at various times from any precisely framed alleged offences. The allegations having been initially raised in one particular form, then appear to have strayed to encompass other areas, such as customer complaints and the general alleged use of bad language in the workplace. The respondent has been both vague and unhelpful to the tribunal in giving his evidence concerning the extent, if any, to which the previous disciplinary finding (that is to say the outcome of the first disciplinary process which was under appeal at the time the second disciplinary process commenced) influenced or did not influence the ultimate decision to dismiss.

9. The tribunal in conducting its task is here endeavouring to gauge whether or not the disciplinary investigation fell within the band of reasonable responses of a reasonable employer. The tribunal is examining procedural fairness in the matter. The lack of specific or precise formulation of any alleged offences, (following what ought to be a fair and proper investigation), at the earliest point possible in the process, and indeed the apparent lack of a clear comprehension on the part of the respondent as to what offences precisely were being alleged, causes considerable concern. In fundamental terms, any employee accused of misconduct is entitled to know with reasonable precision the nature and the extent of any allegations made against him and such employee is entitled to be afforded a fair opportunity to meet those specifically framed and clear allegations. All of these matters go towards the issue of procedural unfairness.

10. The matter is further compounded by the introduction personally of the respondent’s own evidence of misconduct into the proceedings. Here the respondent has assumed the various roles of investigator, of evidence-giver in the provision of his own evidence against the claimant, in the conducting of the disciplinary hearing and also in the conducting of the appeal. The tribunal regards it as being possible in a very small organisation, providing no other resources are reasonably available and providing things are done with scrupulous fairness, for there to be perhaps some permissible “overlapping” of functions. Nonetheless, the tribunal is considerably troubled by the fact that there was no apparent endeavour to explore the possibility of separating out the different roles and functions undertaken by the respondent; accordingly the tribunal is concerned that the procedure adopted strayed into the area of potential unfairness.

11. It is perhaps important to state that these are not matters of complex law but rather matters of quite straightforward natural justice. Any employee is entitled to have disciplinary allegations put to him precisely and clearly; he is entitled to be afforded a fair and a proper opportunity to counter any allegations, to the extent reasonably possible or desired. Anything material that the employee might raise in his defence ought properly to be investigated, in the course of a fair and reasonable investigation. In this matter, the claimant raised a number of objections and arguments in the process. The explanation given for these matters not being investigated was that they did not form part of any complaints which had been received from customers, or complaints received from another employee. The tribunal was unable to understand why such an attitude would be adopted towards the conduct of any investigation. In the course of the hearing the tribunal did endeavour to obtain a clear and cogent explanation, but none was afforded. In the outcome letter both in respect of the disciplinary hearing and also in regard to the appeal, it is evident that the respondent took into account other issues and matters which influenced the respondent’s decision-making apart from those which had been expressly put to the claimant in the disciplinary process. By doing so, the claimant was denied and was not afforded a fair and proper opportunity to meet and to deal with these additional matters and issues which clearly influenced the employer’s decision-making. Whilst certainly some of the documentation prepared by Nigel Marsh on behalf of the respondent and some of the processes engaged in at Nigel Marsh’s suggestion, do have elements purporting to accord a fair and proper approach, nonetheless some of the basic elements of fair procedure are lacking. It is best if the tribunal provides, in brief, some illustrations of the foregoing, which include the following:-

(a) From the respondent’s evidence, the respondent’s decision to dismiss the claimant took into account the findings from the first disciplinary process. However that context and influence upon the process was not expressly addressed in the course of the disciplinary hearing, nor indeed in the appeal.

(b) There was confusion and conflict in the respondent’s respective roles which included evidence-giver, investigator, chair of the disciplinary hearing and chair of the appeal hearing, the degree of overlap and conflict in the exercise of various functions being unacceptable even within a very small organisation.

(d) The allegations of misconduct were framed in a particular manner in the charges levelled against the claimant in the documents, but the actual conduct of both the disciplinary hearing and the appeal hearing did not confine matters to these specific allegations but instead strayed into other areas of alleged misconduct without the respondent affording a fair and proper opportunity to the claimant to address these other issues. Examples of this, by way of illustration, relate to the issues of the claimant’s alleged use of foul language towards customers and in the workplace generally. It is noted that in the written invitation to attend the disciplinary hearing the charges expressly put and any allegations were confined to the specific complaints made by Maureen Hogg.

(e) None of the claimant’s counter-allegations was investigated. These matters raised by the claimant concerned, for example, the suggestion that Maureen Hogg was herself responsible for any workplace conflict. The respondent’s reason provided for failure to investigate was that there had been no customer complaints or complaints from any other employee.

12. The tribunal’s finding, by unanimous decision, is that the dismissal of the claimant by the respondent was procedurally unfair and the appeal process indeed served to compound that unfairness. Regarding compensation, there were no “Polkey” arguments advanced in the case, materially by or on behalf of the respondent who would normally initiate such argument (see Polkey v AE Dayton Services Ltd [1987] IRLR 503) and the tribunal, in the absence of that, of itself did not determine that there ought to be any Polkey reduction to take account of a possible outcome of dismissal in any event had fair and proper procedures been followed, and thus nothing is applicable in that regard.

13. Accordingly, the tribunal awards the following compensation for unfair dismissal in this case.

THE BASIC AWARD

The claimant was summarily dismissed. The appropriate statutory multiplier on foot of Article 153 of the 1996 Order, based on the claimant's age at date of termination (51 years) and length of service (2 years) is 3. The figure for gross pay is £288.46.

The basic award is therefore 3 x £288.46 = £865.38

The Compensatory Award

The claimant was unemployed and was in receipt of Job Seekers Allowance for the period from dismissal up to the date of the hearing. The tribunal determined that the appropriate period of loss that is properly to be compensated runs from the date of dismissal, 5 December 2011, up to date of hearing 7 June 2012 and extends to include also a period for future loss from the hearing date to 5 December 2012, producing, in view of all the pertinent facts, a total period of compensatable loss amounting to 52 weeks. The claimant is therefore entitled to compensation equivalent to 52 weeks' net pay in respect of that loss period. The figure for net pay is £241.53.

52 x £241.53 = £12,559.56

The tribunal awards the sum of £300.00 for loss of statutory rights.

The total of the compensatory award and the basic award is thus £13,724.94. The tribunal, in accordance with this finding, Orders the respondent to pay to the claimant the sum of £13,724.94 in compensation for unfair dismissal, subject to the Recoupment provisions that follow.

14. The applicant did receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 and any subsequent provisions apply. The following recoupment of benefit is therefore applicable in this case:

(a) Monetary Award: £13,724.94

(b) Prescribed Element: £6,381.22

(d) Excess of (a) over (b): £7,343.72

15. This is a relevant decision for the purposes of the Industrial Tribunals (interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 7 June 2012, Belfast.

Date decision recorded in register and issued to parties: