Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v Antrim Borough Council [2012] NIIT 01303_11IT (16 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1303_11IT.html
Cite as: [2012] NIIT 01303_11IT, [2012] NIIT 1303_11IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 1303/11

CLAIMANT: Malachy McCann

RESPONDENT: Antrim Borough Council

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed from his employment by the respondent. The questions of contributory fault and compensation will be considered at a further hearing.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mrs V Walker

Mrs T Kelly

Appearances:

The claimant presented his own claim.

The respondent was represented by Mr N. Richards B.L. instructed by Worthington’s, Solicitors

Issue for Determination

1. The originating application in this claim included a claim of unlawful discrimination on grounds of religion. The claimant withdrew that claim (Ref. No. 71/11 FET) so that the only issue for this tribunal was whether or not the dismissal of the claimant had been unfair.

2. The tribunal heard oral evidence on behalf of the respondent from Ms Jackie Fulton, Assistant Manager at the Antrim Forum who carried out the initial investigation, Mr Ivor McMullan, Assistant Director of Recreation who chaired the Disciplinary Panel and Ms Geraldine Girvan, Director of Development and Leisure who chaired the Appeal Panel. The claimant and Mr Jim Donaghy, a Trade Union representative, gave evidence on the claimant’s behalf.

3. The respondent had prepared a Bundle of documents for the tribunal but the claimant had also brought documentation which was added to the bundle. The respondent’s representatives had not seen some of this documentation before the hearing. This diminished the weight the tribunal was able to give to some of this material especially a diary entry relating to the absence of another employee, Mr King. The tribunal noted that it was the claimant who provided the respondent’s Disciplinary and Dismissal Procedures for Misconduct which was of assistance to the tribunal.

Findings of fact.

4. The claimant was employed by the respondent as a fitness instructor at its premises at Antrim Forum from November 1999 until his dismissal on 7 March 2011.

5. The claimant was off work from 20 September 2010 until 3 November 2010 because of family difficulties arising from his wife’s hospitalisation for major abdominal surgery. He has two children, then aged 3 and 5, and the childcare arrangement had broken down.

6. The claimant’s return to work was on a phased basis; he worked 9.30am to 1.30pm for the first two weeks after which he was to return to normal shifts and duties.

7. On 1 December 2010, the claimant met with Elizabeth Gorman, his line manager, and Elizabeth Wilson for a Rehabilitation Interview. The record of that meeting notes that the respondent’s Work/Life Balance policy was explained to the claimant. (The tribunal was not provided with details of this policy). The record also states that the claimant informed management that his wife’s operation had not been a success and they were waiting to see the consultant to find out how this had gone wrong. Reference was made to a scan on 7 December. The claimant informed his managers that the current arrangement in relation to his duties was fine and it was agreed to review the matter after the appointment with the consultant.

8. On Friday 3 December 2010, the claimant’s wife received notice of an appointment with her consultant on Monday 6 December 2010 at 2.40pm. The claimant was at work on the Friday and did not know of this appointment until after his shift ended that day.

9. The claimant began his shift on 6 December 2010 at 8am. He says that he tried to speak to Trevor Gorman, the duty manager, on his arrival but could not find him. He finally spoke to Mr Gorman at midday and asked for time off for a hospital appointment. Mr Gorman ascertained that the staff remaining was adequate to cover the duties in the fitness suite and gave permission for the claimant to leave his shift two hours early.

10. On 7 December 2010, members of staff in Antrim Forum were talking about the atrocious driving conditions the previous day as there had been an abnormally heavy snowfall. The claimant said he had driven to Whiteabbey as his wife had a hospital appointment. Jackie Fulton, Assistant Manager at Antrim Forum lived in that area and she joined in the chat with the claimant and another member of staff.

11. Ms Fulton has been employed at Antrim Forum for about 13 years. She had managerial responsibility for some 17/18 staff including the staff of the fitness suite so she had known the claimant throughout his employment with the respondent.

12. On 13 December 2010, Elizabeth Gorman, the claimant’s line manager and wife of Trevor Gorman, informed Jackie Fulton that the claimant’s time sheet for the previous week had been returned by the wages section with a query relating to the two hours claimed for a ‘hospital appointment’. Ms Fulton said she would deal with this matter as Mrs Gorman was going off duty.

13. Ms Fulton remembered the conversation about driving conditions on the day in question. She informed the tribunal that she was “curious why he (the claimant) had an appointment on the same day as his wife”. Ms Fulton did not ask this of the claimant but chose instead to ask him to provide the appointment letter. There was no evidence before the tribunal that Ms Fulton had informed anyone in the respondent’s employment at any time of her knowledge that the claimant’s wife had a hospital appointment that day.

14. The claimant found that the letter of appointment had been left at the hospital and he had to request a duplicate. This was provided to Ms Fulton on or about 13 January 2011 and she, with Elizabeth Gorman, had an ‘informal discussion’ that day with the claimant. No written note was made of the content of that discussion but Ms Fulton’s evidence to the tribunal was that she asked the claimant why he had claimed payment for his absence on that day when the hospital appointment was for his wife. She said that the claimant had said that he ‘was not sure.’ The tribunal found that the claimant was informed at this meeting that the respondent’s policy was that time off for hospital appointment’s only applied to staff and not family members. The claimant was not paid for his absence.

15. The claimant’s evidence was that when he completed his time sheet, he believed that he was entitled to be paid for this absence on foot of the respondent’s family friendly policy which had applied during his wife’s hospitalisation. He had also been reassured at the rehabilitation meeting that the respondent would continue to help him in relation to his current family circumstances; the tribunal considered that this was a reasonable assumption in all the circumstances at that time, which included the fact that his wife was unfit to drive.

16. The tribunal was referred to the claimant’s terms and conditions of employment which contained the policy relating to hospital appointments. He had signed these on 29 May 2008, several years after the beginning of his employment. The tribunal was not informed whether this was an amended version of the Terms and Conditions or whether any training, guidance or explanation was provided to the claimant or other employees in relation to this policy at any stage.

17. The claimant was not familiar with this provision; nor was his Trade Union representative, Mr Donnelly, who had to ask the Appeal Panel to provide him with a copy as he had been unable to find it in the documentation which had been provided to the claimant during the disciplinary process.

18. The section relating to medical appointments states as follows;-

“5.1 All employees are permitted one hour off work with pay to attend routine appointments with the doctor, dentist or optician. (emphasis added). Such appointments should, as far as possible, be arranged for the start or end of the working day in order to minimise disruption to the services. In all cases time off to attend medical appointments must be authorised by line management. Such appointments are not recorded as annual leave or sickness absence.

5.2 In relation to hospital appointments, Council recognises that the duration and timing of appointments is generally outside of the control of employees and in view of this reasonable time off with pay will be agreed with the line manager. Any abuse of this system will be viewed as a disciplinary matter (emphasis added).

5.3 All appointments must be evidenced by an appointment card, letter or agreed alternative.”

19. The tribunal noted that the policy provides for time off with pay for hospital appointments. There is not the disconnect between agreement for time off and payment which the respondent’s witnesses suggested was the policy. Nor does it state explicitly that the appointment must be for the employee. The tribunal members know from industrial experience that employees will at times need to attend such appointments with family members, particularly spouses or children. Indeed, Ms Girvan accepted in her evidence to the tribunal that any of the respondent’s managers would have authorised the claimant’s absence if they had known of all of the circumstances.

20. In a letter dated 7 February 2011, the claimant was invited by Ms Fulton to attend a Preliminary Investigation on 10 February 2011 of an allegation of gross misconduct, of dishonestly completing documents in order to obtain payment of wages on 6 December 2010. The purpose of the meeting was “to establish the basic facts in relation to the alleged incident and determine whether the matter needs to be progressed to a disciplinary hearing.”

21. At the meeting on 10 February 2011, the claimant was accompanied by Dee Gourley, a Trade Union representative. Ms Fulton was accompanied by Barbara Irwin, a human resources officer.

22. At the start of the meeting, the claimant gave Ms Fulton a document which stated as follows;-

“I would just like to take this opportunity to say I was wrong in the way I filled out my timesheet. I realise that now but in my defence, I have had a very stressful time with my wife being in hospital following a recent operation and to add to the stress the operation wasn’t successful which put more stress on myself and my wife worrying about having to go through the operation again with higher complications. I usually don’t have any family problems but with this case it was just hard to deal with trying to keep strong for my wife and children. I also had to try and sort out childcare for our children getting to and from school as my wife couldn’t drive. Also having to take my wife back to the hospital to find out where they went wrong. With my mind not fully on my job I ended up making a mistake which has never happened before. Hope you appreciate my honesty, many thanks, Malachy.”

23. Ms Fulton did not remind the claimant of their chat on 7 December about him driving with his wife to the hospital in the heavy snowfall. She described the claimant’s demeanour at the meeting as ‘evasive’. She asked a pre-set list of questions one of which was a request for the claimant’s comments. He replied, “It was an unfortunate incident. I was not thinking clear due to my family circumstances”.

24. The claimant was informed on 16 February 2011, that the decision had been made to progress the matter to a disciplinary hearing. There were 7 key points leading to this decision. Ms Fulton had been given the report of the rehabilitation meeting on 1 December 2010 and noted the reference to a scan on 7December. Ms Fulton apparently made the assumption that this referred to the appointment for which the claimant had claimed. The claimant was asked about the reference to 7 December and he told her that this was a mistake as the appointment had not been received until after that meeting on 1 December. The report from the rehabilitation meeting had also said that they were ‘waiting for information’ from the consultant. Ms Fulton’s decision to proceed to disciplinary action was based on her belief that the claimant had had ‘ample opportunity to seek approval/clarity from his managers’, but there is no indication of the basis of that belief.

25. The decision to proceed also referred to the claimant’s submission that he had been wrong in the way he had completed his timesheet but it noted that “he had ample opportunity to seek approval and clarity on recording methods for taking time off”. The claimant had said in his letter that he had been wrong in the way he had filled in his timesheet. If, as he claimed, the claimant believed that he was entitled under the family friendly policy to be paid for the time off and had rarely been asked for appointment letters on previous occasions, he would not have had reason to seek ‘clarification’.

26. Ms Fulton also gave evidence that another member of the fitness suite staff, Eddie King had requested time off in week ending Sunday 5 December 2010. Mr King told Ms Fulton that his pregnant wife was to have a scan the next day and that her consultant had requested that he should also attend. Ms Fulton had given permission for him to attend. Ms Fulton did not request an appointment card. Mr King did not claim payment for this absence.

27. According to Ms Fulton, she had exercised the discretion permitted to managers in the terms and conditions of the employment contract because Mr King had been ‘up front’ with her and she felt the scan was ‘pertinent’ to Mr King and that it was appropriate that he attend. She also said she did not give much thought to it but presumed that Mr King would not be paid.

28. In cross examination, the claimant informed Ms Fulton that Mr King had told him that when he had applied for the time off he had offered to take the time as annual leave but Ms Fulton had said that would not be necessary. Ms Fulton denied any such conversation had taken place. The claimant also referred Ms Fulton to an entry in the work diary of 9 December 2010, which recorded that Mr King had rung at 9am to say he would be late for duty as he was at the hospital but he would be in as soon as he could. Ms Fulton said she had only been made aware of this entry the morning before giving evidence when the claimant had produced his documentation to the tribunal. She could not be sure but she had some memory of Mr King having a throat infection. The tribunal did not take this evidence in to consideration in its determination as there was no evidence from Mr King and the respondent had no knowledge of this allegation prior to the hearing.

29. In the appeal hearing minutes and in the response to the originating application, the respondent had stated that Ms Fulton should not have granted this time off to Eddie King but said that the matter ‘is being addressed and rectified’. When asked by the tribunal how this matter had been addressed, Ms Fulton appeared surprised and indicated that she did not know how or if it had been rectified. She was reminded that she had been ‘asked’ about this incident by the managers who had carried out the disciplinary procedures. The tribunal was advised by Mr Richards that his instructions were that the matter had been addressed by her managers who had spoken to Ms Fulton and no action had been taken as Mr King had not claimed payment.

30. The disciplinary hearing took place on 1 March 2011. Mr Ivor McMullan, assistant director of recreation, chaired the hearing and he was accompanied by Elaine Magee, assistant director human resources. The claimant was accompanied by Jim Donnelly, a trade union representative.

31. Mr McMullan had been in his post for some 11 years at this time but he had never had any contact with or knowledge of the claimant. He had conducted about 2 disciplinary hearings per year in the last 5/6 years. Mr McMullan and Ms Magee both took notes during the meeting and agreed the final content at the end. As he had further investigation to make, the outcome of the hearing could not have been agreed between the panel members at that time. The tribunal was not informed of any further meetings or discussions or agreements between the panel members after these investigations or any advice Ms Magee provided regarding similar disciplinary actions in her human resource capacity.

32. At the beginning of the hearing, the claimant informed the panel that Ms Fulton’s stated belief that he had known of the appointment on 1 December, was wrong, as was the entry which referred to a scan on 7 December. He explained that he had been told of the date of the hospital appointment on Friday, 3 December.

33. According to Mr McMullan, the claimant and his representative were “not very co-operative” during the hearing. He said they were both “challenging, at worst, hostile”. He had tried to get more information from the claimant as to why the duty manager had not known the reason for the claimant’s absence. Mr McMullan said that he got no sense from the claimant of the family issue related to the time off. He had been provided with the letter the claimant had provided to Ms Fulton but no reference was made to the letter or its content giving details of the stress the claimant was under at that time. Nor was Mr McMullan aware of the “chat” on 7 December with the Assistant Manager Ms Fulton which was not indicative of concealment.

34. It was clear to the tribunal that the main difficulty in this hearing was that the claimant, but particularly his trade union representative, wanted Mr McMullan to investigate the custom and practice of managers when asked for time off, especially whether appointment cards were asked for. Mr McMullan however wanted the claimant to give the names of other staff members who he had said had been given time off to attend hospital appointments that were not personal and who had not been asked for appointment cards. The claimant said he would need to ask the people concerned but Mr Donnelly told him not to answer that question. The tribunal noted in the minutes recorded that the disciplinary panel were asked by the claimant and his representative to check whether it was custom and practice for managers to authorise time off for hospital appointments without asking for appointment cards.

35. Mr Donnelly submitted that the claimant “had admitted that what he did was wrong, the matter had been corrected there and then and nothing further had happened”. He concluded by stating that there had been no intention to deceive or cheat anyone.

36. Mr McMullan told the tribunal that he ‘pleaded’ with the claimant that if he gave the names of the individuals concerned who had got time off in similar ways then he would undertake to follow this up but the claimant declined. Mr McMullan felt there was nothing further to be gained by debate as all planned questions had been asked and there were ‘no further leads for investigation.’

37. After the hearing finished, the claimant and Mr Donnelly went to the café in Antrim Forum and wrote down their account of what had taken place. There were several points where their note of that meeting differed from that prepared by Mr McMullan. The minutes were not sent to the claimant or his representative for agreement.

38. After the hearing Mr McMullan asked Ms Fulton what the procedure was for checking GP and hospital appointments. She informed him that most were checked but that she could not guarantee 100% verification. This was the only action taken by Mr McMullan in response to the request to ascertain what was custom and practice among the managers in this regard. He also checked the wording of the specific offence in the disciplinary policy which states, “Dishonestly completing any document or declaration in order to obtain payment or wages, sick pay, etc under false pretences e.g. Medical and Self Certification.”

39. According to Mr McMullan, both he and Elaine Magee were in agreement that the claimant should be dismissed. He said that this was partly to ensure consistency in the approach that the council took in relation to fraud. There had been a ‘strong’ circular for managers on this topic which Mr McMullan described as ‘zero tolerance’. No such circular was provided to the tribunal. He said that council’s policy allowed for time off and absence for individual staff members but not for family appointments. However, in this case the claimant had not made any effort to make his manager aware that this was a family friendly request. If a member of staff came and said there was a family issue and staff needed a flexible arrangement, it would be discussed and they would always try to accommodate. In this instance, Mr McMullan believed that the claimant’s failure to talk to his duty manager was “a dishonest attempt to conceal, a deliberate effort to defraud”. Mr McMullan said he would have liked to have been able to consider a final written warning and he hoped that the claimant had told a member of staff the reason for the appointment but as he had not, “as an organisation, we have no tolerance of fraud and could not see how we could go back to a lesser decision.”

40. In response to questions put by the claimant in cross examination, Mr McMullan said that the council’s policy in relation to fraud meant that he felt unable to give the claimant an opportunity to improve or take any mitigating circumstances into account as provided for in the disciplinary procedures. In addition, he believed that the claimant had formed an intention to defraud the council at the outset when asking to leave early and that during the disciplinary hearing the claimant had not conveyed any message of stress.

41. The relevant extracts from the respondent’s disciplinary & dismissal procedures for misconduct state as follows;

Para. 3.2 The fundamental aim of (these) procedures is to provide employees with an opportunity to improve their behaviour and/or performance, while making it clear that disciplinary action will be taken if improvements do not occur.

Para. 12.1 When determining the disciplinary action to be taken in any given case, managers shall have discretion to vary the penalty in the light of relevant mitigating circumstances. Each case will be treated on its own merits.

Para 17.1.3 After establishing the facts, the manager may consider that there is no need to resort to the formal procedure and that it is sufficient to talk the matter over informally with the employee. The employee should be made aware that this is an informal discussion as opposed to action under the formal procedure.

Para 17.4.1 In reaching a decision the council will take account of an employee’s disciplinary and general work record, any mitigating circumstances, actions taken in similar cases and the explanation given by the employee. The council will then decide what action is reasonable prior to making a decision.

Para. 17.4.4 The Disciplinary Authority may decide, because of mitigating circumstances, to impose a penalty short of dismissal which may include (several alternative penalties are set out including suspension without pay etc,)

42. The claimant was informed by letter dated 7 March 2011, that his employment had been terminated. The decision recorded that he had completed his timesheet dishonestly in order to obtain payment. It noted that he had a clean disciplinary record over 10 years service but that due to the fundamental breach of trust and confidence arising from the incident, the panel had decided to dismiss him summarily.

43. The claimant wrote to Geraldine Girvan, the respondent’s director of development and leisure on 10 March 2011, seeking an appeal against this decision. His grounds of appeal were essentially that the decision to dismiss was flawed in that there had not been a thorough investigation, no mitigating factors had been taken into account and the decision to dismiss was unreasonable and unjustifiable in all the circumstances.

44. The appeal hearing took place on 22 March 2011. Ms Girvan, director of development and leisure, chaired the meeting accompanied by John Balmer, assistant director of finance. Pamela Wishart took minutes. The claimant attended with Mr Donnelly as before, who gave the panel a copy of his suggested amendments to the minutes of the Disciplinary meeting. The claimant also provided a letter from his GP, Dr O’Hanlon which confirmed that the claimant “was required to take his wife to a hospital appointment following recent gynaecological surgery. She was unwell and unfit to drive. There was no-one else available. This is a genuine reason and I know Mr McCann has been acutely stressed by his wife’s recent health problems. This situation has only added to that stress. I do feel it would be unfair to penalize him for looking after his wife when so much time is taken off “on the sick” for spurious reasons.”

45. The appeal panel upheld the decision to summarily dismiss. Ms Girvan had spoken to Ivor McMullan and was informed by him that he had taken legal advice in relation to the difference between the circumstances of the claimant and Eddie King and was assured the difference between the two men was fundamental. (Mr McMullan did not inform the tribunal that he had taken any such advice or from whom it was sought.) She had also noted that the claimant had told Ms Fulton at the Investigation that he knew what the procedure was if the hospital appointment applied to him. He should therefore have asked for clarity from Trevor Gorman by explaining that the appointment was for his wife.

46. Ms Girvan said, “Antrim Borough Council is a caring employer, a reasonable employer. When someone acts dishonestly in the face of reasonableness and support it was a very serious matter. That issue of trust and confidence is key. Eddie asked up front for time off to attend the scan of his pregnant wife. That is a fundamental difference. Mal did not share the information he had. This is the crux, an honest approach and a dishonest approach.”

47. Before arriving at a decision, Ms Girvan also sought information from Ms Fulton about Mr King. Ms Fulton provided her with a statement dated 24 March, shortly after the hearing and prior to the decision. In the statement Ms Fulton explained that Mr King asked to come in one hour late for his shift the following day as his wife had an appointment for the last scan of his baby prior to birth. The statement does not mention any request from the consultant for the father to attend. She states that she agreed as it was ‘pertinent’ for both parents to be in attendance. She also said that Eddie did not present a letter and she did not ask to see it.

48. In arriving at its decision, the appeal panel concluded that it was reasonable for the disciplinary panel to determine that the claimant had deliberately and dishonestly attempted to obtain payment when he knew he was not entitled to it. They were of the opinion that if he had believed he was entitled to this payment, he would have specifically stated this to his supervisor. In relation to Mr King, the panel said his supervisor (Ms Fulton) should not have granted the time off “but this is being addressed and rectified. This is a failure on the part of the council to apply the policy but does not alter the fact that Malachy McCann was dishonest”.

49. The claimant asked Ms Girvan in cross examination whether she believed, in his circumstances at the time, that he had made a genuine mistake as he had stated. She replied that the panel had deliberated for some time on this point, particularly in view of the letter from Dr O’Hanlon. They took into account the stress he was under and believed that no manager in Antrim Borough Council would have refused the time off to any member of staff in his circumstances. She said that if the claimant had been honest, he would have been given the time off.

50. When asked by the tribunal how the council’s failure had been addressed and rectified as stated, Ms Girvan said that the policy relating to medical appointments applied to staff as employees but this fact seemed to have been ‘lost’. Mr McMullan had assured her that general practice was that staff were asked for verification but to address and rectify the matter, Ms Girvan said staff needed to be reminded to ‘a more global or corporate effect’ that they needed to adhere to the policy regarding medical appointments.

51. The decision of the Appeal panel to confirm the dismissal was sent to the claimant on 1 April 2011. His employment had terminated on 7 March 2011.

The Law

52. The legal basis of a claim of unfair dismissal is contained in Article 130 of the Employment Rights (Northern Ireland) Order 1996 (as amended). This provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal and whether, in all the circumstances, he has acted reasonably. This is to be determined in accordance with equity and the substantial merits of the case.

53. The statutory provisions relating to unfair dismissal were first introduced in the early 1970s. Over the years there have been changes to the wording of the provision and numerous cases where the wording has been judicially examined. The most recent cases before the English Court of Appeal were Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 and Orr v Milton Keynes Council [2011] IRLR 317. In the Orr decision, Lord Justice Moore-Bick looked at the historical progress of judicial thought on this topic. He quoted with approval the most common statement of the approach that should be taken in such cases by tribunals set out in the decision of British Home Stores v Burchell [1978] IRLR 379 (per Arnold J.);-

“What the tribunal have to decide every time is whether the employer who discharged the employee on the ground of the misconduct in question 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, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

54. In the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, Browne-Wilkinson J. advises that tribunals must not substitute its own decision as to the right course for the employer to adopt. In many 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. The function of the industrial tribunal 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.”

55. In Northern Ireland, the Court of Appeal has also considered this matter in Dobbin v Citybus Ltd [2008] NICA 42 where Higgins LJ. referred with approval to the guidelines in the Burchell and Iceland cases and confirmed that this is the correct approach for tribunals in this jurisdiction to take.

56. In a more recent decision in this jurisdiction, Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, the Court of Appeal again considered a case of unfair dismissal and again quoted these precedents. In addition, Morgan LCJ went on to discuss the appropriate standard proof in such cases. He quoted from an opinion of Lord Carswell, a former LCJ here in the case of Re CD [2008] UKHL 33 who considered that the proper approach had been set out in R (An) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605 by Richards LJ. as follows;

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.”

57. With reference to this extract at paragraph 27 of the Rogan decision, Morgan LCJ said at Paragraph 27 in relation to this extract, “Situations which make such heightened examination necessary may be the seriousness of the allegation to be proved or, in some cases, the consequences which would follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration; a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition. If it is alleged that a bank manager has committed a minor peculation that could entail very serious consequences for his career so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or an especially cogent standard of evidence. Merely appropriate careful consideration by the tribunals before it is satisfied of the matter which has to be established.”

Tribunal’s Determination

58. The tribunal has given lengthy consideration to the material set out above and to its own overriding objective in the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 of ensuring justice between the parties. We have determined that the claimant was unfairly dismissed by the respondent contrary to Article 130 of the 1996 Order on the grounds that the decision to dismiss did not fall within the band of reasonable responses that a reasonable employer would have adopted in all the particular circumstances of this case. The decision to dismiss was made on the basis of investigations that were deficient in several respects and thus unreasonable.

59. One such deficiency related to the actions of Ms Jackie Fulton, assistant manager of Antrim Forum. The tribunal determined that a reasonable employer, on being informed by a more junior manager, Mrs Gorman, that a query had been raised relating to a claim for payment during absence would have instructed Mrs Gorman (who was more fully seized of the claimant’s personal circumstances) to deal with the matter in accordance with the respondent’s procedures. Ms Fulton, as a reasonable employer, should also have informed Mrs Gorman, (or been more ‘up front’) that she was herself aware that on the day in question, the claimant had driven his wife to hospital for an appointment. The tribunal further determined that a reasonable employer would not have taken over the investigation of the matter or withheld information relevant to that investigative process at any stage.

60. With regard to Mr McMullan, he had been informed by the claimant and Mr Donnelly that it was custom and practice for managers not to ask for evidence of hospital appointments. Despite the fact that his fellow panel member was assistant director of human resources who would be expected to advise him on such matters, Mr McMullan relied on the response from Ms Fulton which actually admitted that 100% adherence was not guaranteed. The tribunal determined that this was an inadequate investigation of a key element of the claimant’s response to the charge. He based his decision that the claimant was dishonest and had fraudulent intent when asking for leave from Mr Gorman on Ms Fulton’s assurances. Even though he subsequently found out that Ms Fulton had herself failed to follow procedure the previous day in relation to the same request from Mr King, he did not appear to the tribunal to have altered that belief.

61. Ms Girvan and Mr Balmer, the members of the Appeal Panel, concluded that it was “reasonable for the disciplinary panel to determine, on the basis of facts presented Malachy deliberately attempted to obtain payment that he knew he was not entitled to.” (emphasis added). The tribunal determined that a reasonable employer with the added benefit of additional facts presented in the form of the medical report, that the claimant was ‘acutely stressed’ at the time and the knowledge that both the duty manager and assistant manager of the Forum had not followed the proper procedure at the relevant time, would have reached their own conclusion based on the evidence before them rather than repeat the previous decision. Indeed, Ms Girvan gave evidence that any manager knowing the full circumstances would have approved the claimant’s claim. Despite knowing that two managers did not follow procedure no enquiry was made of any other manager.

62. None of the decisions made in this case by the respondent’s representatives make any reference to the provisions of the disciplinary and dismissal procedures for misconduct and the documentation relating to it was not included in the bundle prepared by them for the tribunal.

63. The disciplinary & dismissal procedures for misconduct provides, at paragraph 18.7 that the appeal will usually be limited to the grounds set out by the employee in their written request. The claimant’s request of 10 March 2011, included his belief that the investigation in his case had been flawed in that it had not been thorough enough, the dismissal had not been in accordance with the respondent’s policies and procedures, no account had been taken of mitigating factors, other staff had been treated better and that the decision to dismiss was unreasonable in all the circumstances. This tribunal has found that there was merit in several of these grounds but there is little in the decision of the appeal panel which demonstrates that these matters were properly addressed. Rather, it appeared that the appeal panel had simply looked to see if the disciplinary panel’s conclusions could be supported without a proper consideration of the grounds of appeal in the light of the additional material available to them. The fact that the appeal panel stated that Ms Fulton’s failure to follow procedure had been addressed and rectified, a comment repeated in the response to the originating application, when even Ms Fulton was not aware what this meant, was an indication to this tribunal of an attempt to mislead. The Tribunal also noted that there was no action taken against Trevor Gorman for his failure to follow procedure.

64. The seriousness of the findings of dishonesty and fraudulent intent leading to summary dismissal of this claimant were unfair and not in accordance with equity and the substantial merits of the case.

65. Mr Richards sought to make submissions to the tribunal in relation to contributory fault by the claimant. The tribunal did not consider it appropriate that the claimant be asked to respond to such an application without advice and/or assistance. In any event, the claimant had not been aware that he should have prepared a Schedule of Loss and the tribunal had no information regarding benefits received. The tribunal will arrange a hearing to deal with these matters.

Chairman:

Date and place of hearing: 27 – 29 February 2012, Belfast.

Date decision recorded in register and issued to parties: