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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lenaghan v Equality Commission for Northe... [2012] NIIT 02263_11IT (12 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02263_11IT.html
Cite as: [2012] NIIT 2263_11IT, [2012] NIIT 02263_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2263/11
CLAIMANT: Joseph Lenaghan
RESPONDENT: Equality Commission for Northern Ireland
DECISION
The unanimous decision of the tribunal is that the claimant’s claim is dismissed as the agreed 2001 Disciplinary Policy and Procedures were varied by consent on 4 October 2010, and the respondent has complied with the provisions of Article 35 of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs G Ferguson
Mr R Hanna
Appearances:
The claimant was represented by Mr R McClelland of NIPSA.
The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The claim
1. The claimant sought a declaration from the tribunal as to his terms and conditions of employment in respect of the disciplinary policy and procedures associated with those terms and conditions. The claimant maintained that the correct procedures were 2001 procedures, whereas the respondent contended that the appropriate disciplinary policy and procedures were those agreed on 4 October 2010 between the respondent and NIPSA in accordance with the Joint Consultative and Negotiating Committee’s constitution and procedures (“JCNC”).
The Issues
2. The agreed legal issue before the tribunal was as follows:-
Has the respondent complied with the provisions of Article 35 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”)?
The central agreed factual issue was as to whether the disciplinary procedures, as agreed in 2001, were varied by consent on 4 October 2010.
Sources of Evidence
3. The tribunal heard evidence from the claimant and from Helen Magowan, Legal Officer and Branch Secretary of NIPSA on his behalf. It also heard evidence from Bill McAlorum, Human Resources Manager, Paul O’Neill, Senior Investigation Officer, Eileen Lavery, Head of Advice and Compliance, and Keith Brown, Head of Corporate Services, on behalf on the respondent. The tribunal received a bundle of documentation from the parties together with additional documentation in the course of the hearing. The tribunal was also assisted by an agreed chronology which is appended to this decision.
Findings of Fact
4. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant’s contract with the Commission for Racial Equality for Northern Ireland transferred to the respondent with effect from 1 October 1999. The final paragraph of the claimant’s contract reads as follows:-
“CHANGES IN TERMS AND CONDITIONS
From time to time your main terms and conditions of employment may be subject to change (ie by negotiated agreement). Should this occur, you will be informed in writing within one month of the change taking effect”.
(ii) The tribunal is satisfied that disciplinary rules and procedures signed by the respondent and NIPSA, dated 6 September 2001, applied to the claimant from that date. The final paragraph of the procedures states as follows:-
“18 Revision and termination of agreement
18.1 This agreement may be revised subject to agreement of the Commission and NIPSA or by management to any extent necessary to comply with legislative change. In the event of legislative change, NIPSA will be advised accordingly”.
(iii) There is in place a collective bargaining procedure which provides that the terms and conditions of employment of employees, including the claimant, can be varied through the collective bargaining process.
(iv) Paragraph 4 of the joint consultative and negotiating committee constitution states that the functions of the JCNC include:-
“(a) Negotiation on all aspects of terms and conditions of employment for staff, excluding those matters which are centrally or nationally negotiated.
(b) Joint consultation on matters affecting the interests of staff.
(c) Exchange of information on management’s activities and future plans within a reasonable time to allow where appropriate for consultation and negotiation.
(d) The drawing up and/or revision of agreed procedures on grievances, discipline, arbitration and other relevant matters”.
The tribunal carefully examined all relevant documentation presented to it in the course of the hearing together with the oral evidence given on behalf of both parties. In the record of the JCNC meeting dated 12 November 2009 attended by Bill McAlorum and Keith Brown on behalf of the respondent and by Robin McClelland of NIPSA (Chairman of the meeting), Donal Collins (Organiser, of branch 147), and Helen Magowan (Chair, of branch 147), it is noted under the heading of “disciplinary” as follows:-
“MS will forward to TUS when comments have been received from MB. TUS to check NICS appeal process relating to informal action and report back to JCNC”.
(v) On 4 March 2010 Bill McAlorum forwarded a revised disciplinary policy and a revised redundancy policy for consultation to Helen Magowan of NIPSA. He stated in the covering correspondence:-
“I would welcome comments from TUS. Please forward any comments directly to me. I will also place the policies on the “draft policies” folder on the intranet.
I would also take this opportunity to request TUS comments on the recruitment and selection procedures forwarded after the last JCNC meeting. If there is anything on the procedure that you would like me to consider further please do not hesitate to contact me directly”.
The respondent through Wayne Nicolson, forwarded an email to all staff on
9 March 2010, stating that:-
“The commission has produced a draft disciplinary policy and procedures and a draft redundancy procedure. Please note these draft policies and procedures have been under review for some time. These draft policies and procedures can be viewed using the below”.
He then refers to certain pathways on the intranet. Around half an hour later the claimant emailed Wayne Nicolson to enquire, “how long do we have to consider these and reply? Joe”. A few minutes later he received a reply from Wayne Nicolson which states:-
“Joe
Further to you[r] below request, I can confirm that the consultation period is for 10 working days from when the policies and procedure were place[d] in the draft policies folder, which was today.
Wayne”
(vi) On 16 March 2010 Helen Magowan wrote to NIPSA members attaching the draft disciplinary procedure on redundancy policy and requesting comments by Friday 26 March. It is subsequently recorded in the document entitled “SUMMARY OF TUS COMMENTS ON POLICIES AND PROCEDURES FOLLOWING MEETING OF 15 APRIL 2010”, as follows:-
“NIPSA did not have any comments to table on the disciplinary rules and procedures but undertook to forward to HRM written comments within two weeks”.
The meeting on 15 April 2010 was attended by Bill McAlorum and M Meenan of Human Resources on behalf of the respondent and Donal Collins and Helen Magowan on behalf of NIPSA. The record of the JCNC meeting held on 29 April 2010 states under “disciplinary, awaiting comments from TUS”. It is clear to the tribunal that NIPSA, although commenting on the draft redundancy procedures, did not forward any comments in relation to the proposed new disciplinary procedure.
(vii) Ultimately, on 4 October 2010, Bill McAlorum notified Helen Magowan by email that the draft policy was being removed from the draft policies folder and that the consultation period had now ended. In Helen Magowan’s absence, a telephone conversation took place between Bill McAlorum and Donal Collins of NIPSA on 5 October 2010 during which Bill McAlorum advised him that the consultation period had ended and that the respondent would be using the new disciplinary procedure with effect from 4 October 2010 and that the draft policy would be removed from the draft folder. The tribunal accepts Bill McAlorum’s evidence that Donal Collins stated that this was “not a problem” and that his only remaining comment was in relation to the extent and volume of instructions laid out in the procedure. This was a reference to the appendices which did not form part of the procedure itself. The tribunal was shown a note of this telephone conversation, and took into account the claimant’s claims that Donal Collins did not have the authority to state, in terms, that the draft policy was agreed. On 6 October 2010 Bill McAlorum informed Keith Brown by e-mail that he had spoken to Donal Collins and informed NIPSA that consultation on the policy and procedure had ended and that he would like to issue the policy to the Management Board for information and forward it to the Trade Union before placing it on the intranet for all staff. He also intended to forward a copy of the policy together with the redundancy policy to the Labour Relations Agency for information and for their records. This email was followed by a further email to Helen Magowan on 12 October 2010 informing her that the disciplinary procedure would be communicated to all staff on 12 October 2010 via the intranet. NIPSA had a further opportunity to raise any late concerns at a meeting held on 12 October 2010 with management which, although not referring specifically to the disciplinary procedure, nonetheless gave NIPSA the opportunity of raising any such issues generally, as matters such as time recording and car parking were raised.
(viii) In early October 2010 the claimant was on sick leave and was then on continuous sick leave from 15 October 2010 until 31 December 2010. During this period he received correspondence dated 18 October 2010 notifying him of a disciplinary investigation concerning allegations regarding his conduct in the period from 1 June 2010 to 29 September 2010. A copy of the 2010 disciplinary policy and procedures was enclosed with that letter. Although two JCNC meetings were postponed earlier in the year at the request of NIPSA, a further JCNC meeting took place on 18 November 2010. The record shows no mention whatsoever of any issues being raised regarding the 2010 disciplinary procedure. Further correspondence to the claimant from the respondent dated 17 January 2011 indicated that the disciplinary investigation meeting, previously postponed at the claimant’s request, was being rescheduled for 28 January 2011. The correspondence states as follows:-
“Please note that the purpose of the meeting is entirely a fact-finding exercise and is not a disciplinary meeting (see Section 4 of the enclosed “disciplinary policy and procedures” previously provided)”.
(ix) Notes of the investigation meeting held on Friday 28 January 2011 at which the claimant was represented by Helen Magowan state:-
“HMcG raised a number of procedural questions. It was agreed that DMcA would record the procedural issues raised in reply to HMcG separately”.
(x) The claimant maintained, together with Helen Magowan, that they had raised issues contending that the disciplinary policy pertaining to the timeframe for the allegations was the appropriate policy to be applied, and that the 2010 policy was not agreed. The tribunal, however, is satisfied that the only issue raised in this context related to the contention that the disciplinary procedure in place at the dates of the alleged allegations was the appropriate procedure to be used. This is confirmed in correspondence to Helen Magowan dated 1 February 2011 from Bill McAlorum wherein he states:-
“The investigation was initiated and conducted under the correct disciplinary policy and procedures dated 4 October 2010. The policy was provided to Mr Lenaghan on 18 October 2010”.
(xi) The tribunal’s finding on this matter is fortified by the claimant’s email dated
3 February 2011 to the claimant’s line manager, Patrice Hardy, and copied to Bill McAlorum in which he refers to “the agreed disciplinary policy and procedures (4 October 2010)”. In further correspondence from the Department to the claimant dated 21 March 2011 in relation to a disciplinary hearing, it is specified that the hearing will be conducted in accordance with paragraph 4.3 of the Commission’s policy and procedures, a further copy of which was enclosed. Again on 25 March 2011 an email from Bill McAlorum to Helen Magowan refers to specific paragraphs in the 2010 procedure. A detailed email from Robin McClelland of NISPA dated 30 March 2011 to Keith Brown and copied to Helen Magowan, contains references to paragraphs in the 2010 procedure which he describes as “the agreed procedures (4 October 2010)”. Again, on 31 March 2011, when the claimant raised a grievance with the respondent’s Chief Executive he refers to “the Commission’s disciplinary policy and procedures (4 October 2010)”, and proceeds to refer to specific paragraphs within that procedure. The tribunal is satisfied that the first occasion on which an argument was made by or on behalf of the claimant regarding the inapplicability of the 2010 procedures to him was in an email to Eileen Lavery dated 5 May 2011 in which the claimant states, inter alia:-
“In applying the October 2010 disciplinary policy & procedure to me without my agreement is a variation of my terms and conditions of employment and therefore the Commission is obliged to deal with me under the existing policy as it did in 2004. If this is not accepted, then I will have no alternative but to ask the Industrial Tribunal to make a Declaration of my Terms and Conditions of Employment, under article 33 of the Employment Rights (NI) Order 1996, to determine which policy and procedure should apply.
I have been advised by NIPSA that the proposed Disciplinary Policy & Procedures (4 October 2010) has not been agreed with NIPSA. (Helen may wish to confirm this)”.
Again at paragraph 13 of his correspondence to Eileen Lavery the claimant asserts:-
“There is sufficient evidence to date to demonstrate that the process, so far, is outside the Disciplinary Policy and Procedures (4 October 2010), and that had these minor allegations which are currently being levelled against me, being dealt with an at earlier stage, the previously agreed Disciplinary Policy and Procedures, which I was previously subject to in 2004 and form part of my Terms and Conditions of Employment, should have been applied, at the time of the alleged offences, not some considerable time afterwards”.
(xii) The tribunal is satisfied that from this point onwards the claimant sought to introduce a new argument ie, that the 2010 procedures were not agreed by NIPSA and therefore were not incorporated as terms and conditions of his employment. NIPSA then began to raise the same argument in Mr Clelland’s email to Keith Brown dated 27 July 2011 which refers to the “unilateral adoption by the commission of a new disciplinary procedure and policy without agreement by NIPSA”. The tribunal is not persuaded by the claimant’s assertion that Eileen Lavery conceded on 5 May 2011, during a grievance meeting involving the claimant, that the 2010 policy was not agreed. The tribunal is satisfied that the position is correctly set out in the “REPORT OF AN APPEAL AGAINST A GRIEVANCE REPORT” relating to the claimant’s appeal against Eileen Lavery’s failure to uphold his grievance on 22 June 2011.
(xiii)
The tribunal considered the
subsequent exchange of correspondence as referred to in the attached chronology
insofar as relevant together with relevant oral evidence and finds that the
evidence points to the conclusion that the disciplinary procedure, as agreed in
2001, was varied by consent on 4 October 2010 particularly in light of the
facts as found in advance of 5 May 2011, following which the claimant and NIPSA
changed course and embarked upon an exercise designed to unravel what had
previously been agreed. This included Donal Collins unconvincing denial of the
contents of a telephone conversation held between Bill McAlorum and himself on
5 October 2010, referred to previously.
(xiv) The claimant presented his claim to the tribunal on 6 October 2011.
The Law
5. (1) The law in relation to a statement of initial employment particulars and disciplinary procedures is contained in Articles 33 and 35 of the 1996 Order. Articles 43 and 44 of the 1996 Order contained provisions relating to references to Industrial Tribunals and determination of references.
(2) His Honour Judge Byrt in his judgment in the case of Railcare Limited v Cook (1999) UKEAT 1052 980303 states that:-
“Our first concern must be to determine the relevant date the tribunal have to have in mind when they consider a reference … construing those provisions in accordance with their natural meaning, it is our judgment that the tribunal is required to make a determination, as to the position at the date of the reference. At that point in time, the applicant is inviting the tribunal to consider whether, prior to that moment, the employer has failed to comply with the requirements of Section 1 and 4. If the tribunal finds that he has so failed, then the tribunal is invited to say what particulars ought to have been included in order to satisfy those requirements. If the material date for the tribunal to consider the contents of the particulars was the date of the hearing, then there would be no sense in making the Employer’s failure to provide the particulars required by Sections 1 or 4, the ground for the reference”.
The Submissions
6. The tribunal considered written submissions from both parties and as supplemented by oral submissions on 2 April 2012 during which the claimant referred the tribunal to the case of Harris v Richard Lawson Auto Logistics Ltd [2002] EWCA Civ 442. A copy of the written submissions are appended to this decision.
Conclusions
7. Having considered the evidence together with the findings of fact and the relevant law, the tribunal concludes, as in the findings of fact, that the agreed 2001 Disciplinary Policy and Procedures were varied by consent on 4 October 2010. The respondent has also complied with Article 35 of the Order, and the claimant’s claim is therefore dismissed.
Chairman:
Date and place of hearing: 29 February to 2 March and 2 April 2012, Belfast.
Date decision recorded in register and issued to parties: