Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS  

   

CASE REF:   2559/11

 

 

 

CLAIMANT:                      Adrian McSherry

 

 

RESPONDENT:                Almac Clinical Services Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is as follows:

 

(A)     The claimant was unfairly dismissed. 

 

(B)     The tribunal has decided not to make an order for the reinstatement or re-engagement of the claimant.

 

(C)     It is ordered that the respondent shall pay to the claimant the sum of £350 as compensation in respect of that dismissal.

 

 

Constitution of Tribunal:

Chairman:              Mr P Buggy

Members:              Mrs K Elliott

                              Mrs M McReynolds

 

 

Appearances:

The claimant was represented by Councillor L Mackle.

 

The respondent was represented by Mr P Bloch, Barrister-at-Law, of EEF Northern Ireland.

 

 

REASONS

 

1.               The respondent is a large employer, whose factory is located at Craigavon.  The claimant was employed by the respondent from April 2009 until 15 June 2011, latterly as a Senior Production Operator.  The claimant was involved in an incident on 11 May 2011.  He was subjected to disciplinary proceedings arising out of that incident.  The outcome of the disciplinary proceedings was that he was dismissed on 15 June 2011, for gross misconduct. 

 

2.       He pursued an internal appeal against that dismissal.  That appeal was unsuccessful.  In these proceedings, the claimant complains of unfair dismissal.  He claims compensation.  He has also asked the tribunal to make an order for his reinstatement or re-engagement. 

 

Article 130(4)

 

3.       The unfair dismissal legislation is contained in Part XI of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).  The provisions of Part XI of the Order are, in all material respects, identical to the unfair dismissal provisions of the Employment Rights Act 1996, which applies in Great Britain. 

 

4.       Article 126 of the Order confers the right not to be unfairly dismissed.

 

5.       Article 130(1) of the Order provides that, in determining for the purposes of the unfair dismissal legislation whether the dismissal of an employee is fair or unfair, it is for employer to show the reason for the dismissal and that it is a potentially fair reason (in that it is a reason falling within the scope of Article 130(2) of the Order). 

 

6.       In this case, it is agreed between the parties that the claimant was dismissed for misconduct, and that such a reason for dismissal is a potentially fair reason (in the sense in which the term “potentially fair” is usually used within the context of Article 130). 

 

7.       Accordingly, in the context of the liability issues in this case, the focus of attention shifts to the provisions of Article 130(4), which provides as follows:

 

                    “(4)     [Where] the employer has fulfilled the requirements of paragraph (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) –

 

                              (a)      depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

                              (b)      shall be determined in accordance with equity and the substantial merits of the case”. 

 

8.       On behalf of the claimant, it was accepted that the unfair dismissal claim must be dismissed if the tribunal concluded, pursuant to Article 130(4) of the Order, that the dismissal was “fair” within the meaning of that paragraph.  It was accepted on behalf of the respondent that the claimant was entitled to succeed in these proceedings if the tribunal properly concluded that the dismissal was “unfair” within the meaning of Article 130(4).

 

9.       How should the provisions of Article 130(4) be applied, in a case (like the present case) in which it is alleged that a claimant has been dismissed because the employer’s internal disciplinary authorities believed him to be guilty of misconduct, which he denies?  In our view, the current state of law on that issue has recently been accurately summarised, by Judge McMullen QC, in TDG Chemical Ltd v Benton, [2010] UKEAT 0166.

 

10.     In Benton, the claimant had been dismissed because the employer believed that he had “mouthed” a racist insult to a colleague.  He won his unfair dismissal claim in the employment tribunal.  The employer unsuccessfully appealed, to the Employment Appeal Tribunal.  In the course of determining the appeal, Judge McMullen summarised the current state of the law in the context of dismissals for alleged gross misconduct:

 

          (1)    The test set out in British Home Stores v Burchill [1980] ICR 303 is relevant.  That test, as set out in that judgment, was as follows:

 

                          “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question … 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 the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.” 

 

          (2)   In considering the quoted extract from Burchill, it must be borne in mind that, when Burchill was decided, a burden of proof was imposed upon an employer in the context of the contemporaneous version of the GB counterpart to Article 130(4).  As a result of subsequent amendments, no such burden of proof is now imposed upon an employer, in the context of Article 130(4), as currently enacted.

 

          (3)  The approach to fairness, and particularly fairness in procedure, is a standard of a reasonable employer, in relation to all three stages of the Burchill test: See Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588.

 

          (4)   The reasonable investigation stage of the Burchill test has been subject to refinement in two judgments.  First, A v B [2000] IRLR 405 indicates that there is to be a standard of investigation which befits the gravity of the matter charged.  Secondly, in Salford v Roldan [2010] EWCA Civ 522, Elias LJ, on behalf of a unanimous Court of Appeal, reinforced the position which he had set out in A v B, indicating that, where the circumstances of a dismissal would create serious consequences for the future of an employee, particular care must be given to the investigation.

 

11.     We consider that the current state of the relevant law (in the context of the application by tribunals of Article 130(4), in relation to dismissals for alleged misconduct) has been summarised in a particularly clear manner by Aikens LJ in the recent Court of Appeal case of Graham v The Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903, at paragraph 35 of the judgment, in the following terms:

 

                  “35.  in Orr v Milton Keynes Council [2011] ICR 704 all three members of this court concluded that … [the GB equivalent of Article 130(4)(b) of the Order] did not permit any second consideration by an ET in addition to the exercise that it had to perform under [the GB equivalent of Article 130(4)(a) of the Order].  In that case I attempted to summarise the present state of the law applicable in a case where an employer alleges that an employee had engaged in misconduct and has dismissed the employee as a result.  I said that once it is established that [the] employer’s reason for dismissing the employee was a “valid” reason within the statute, the ET has to consider three aspects of the employer’s conduct.  First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief. 

 

                  36.  If the answer to each of those questions is “yes”, the ET must then decide on the reasonableness of the response by the employer.  In performing the latter exercise, the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the ET’s own subjective views, whether the employer has acted within a “band or range of reasonable responses” to the particular misconduct found of the particular employee.  If the employer has so acted, then the employer’s decision to dismiss will be reasonable.  However, this is not the same thing as saying that the decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse.  The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer.  The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which “a reasonable employer might have adopted”.  The ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process) and not on whether in fact that employee has suffered an injustice. …”

 

The claims and the defences

 

12.     In these proceedings, from the outset, the claimant has complained about the “unfairness” of his dismissal, and he continues to complain in respect of that alleged unfairness.  Initially, that complaint was based on two causes of action.  First, he was complaining that the dismissal was tainted by religious and/or political discrimination.  Secondly, he was arguing that the dismissal was an unfair dismissal. 

 

13.     The claimant has withdrawn his discriminatory dismissal complaint.  Accordingly, we are left only with a complaint of unfair dismissal. 

 

14.     The respondent says that the claimant was dismissed because the internal disciplinary decision-makers (the members of the first stage internal disciplinary panel and the members of the second stage, appellate, internal disciplinary panel) believed that, during the course of the relevant incident, on 11 May 2011, the claimant had head-butted “X” (which is the designation by which we will refer, throughout this Decision, to the other member of the respondent’s staff who was involved in the relevant incident). 

 

15.     By and on behalf of the claimant, it has been accepted that the relevant decision-makers within the respondent (the members of the two disciplinary panels), at the end of their deliberations, did genuinely believe the claimant to be guilty of the alleged head-butting.

 

16.     On behalf of the claimant, it is also accepted that, in the circumstances of this case, dismissal was a proportionate sanction for head-butting. 

 

17.     Accordingly, in deciding whether the dismissal was fair or unfair, there are two central issues to be considered.  First, before the employer ultimately concluded that the claimant did indeed head-butt X, did it carry out an investigation into the matter which was reasonable in all the circumstances of the case?  Secondly, did the employer have reasonable grounds for that belief?

 

18.     Apart from the issues identified in the last preceding paragraph, we also need to consider other arguments which have been made on behalf of the claimant.  First, it was argued that the members of the first-stage disciplinary panel came to conclusions about the guilt of the claimant much too early and were thereafter biased against him for that reason.  Secondly, it was argued that the dismissal was tainted by procedural flaws.

 

19.     All of the contentions referred to the last preceding paragraph were rejected by the respondent.

 

20.     The respondent argues that, even if there were any procedural defects in relation to this sacking (which the respondent denies), the dismissal was in any event not unfair, because of the affect of Article 130A(2) of the Order.  Our understanding is that it is not accepted, by or on behalf of the claimant, that the respondent, in the circumstances of this case, is entitled to the benefit of Article 130A(2).

 

21.     On behalf of the claimant, Mr Mackle set out his arguments in a written Submission (“the Submission”).  During the course of a one-hour hearing on 17 May 2012, Mr Mackle had the opportunity to present oral arguments.  On the same occasion, Mr Bloch had the opportunity to respond to the points made in the Submission and to present any other arguments which he considered to be appropriate.  We wish to pay tribute to the quality of the arguments which were presented, both by Mr Mackle and by Mr Bloch.

 

22.     The tribunal drew the attention of the parties to the three English Court of Appeal decisions which are referred to in the course of paragraphs 16-18 of the industrial tribunal decision in Stewart v Western Health and Social Care Trust (Case ref: 2500/10, issued on 22 December 2011).

 

23.     Prior to the “arguments” hearing, Mr Mackle drew the attention of the tribunal to the case of Crawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402. 

 

Liability:  The legal principles

 

24.     In deciding this case, we have paid careful attention to the comments of the Northern Ireland Court of Appeal in the judgments in Dobbin  v  Citybus Ltd [2008] NICA 42 and in Rogan  v  South Eastern Health And Social Care Trust [2009] NICA 47.  Mr Bloch suggested that the judgments of the English Court of Appeal (as listed in the preceding paragraphs) are not in any way inconsistent with Dobbin or Rogan.  We agree.

 

25.     In this general context, we note the comments of a unanimous Northern Ireland Court of Appeal in Breslin  v  McKevitt [2011] NICA 33, at paragraph 49 of the judgment:

 

                    “[49]   While this court is not strictly bound to follow a decision of the Court of Appeal in England and Wales it is the practice of this court to follow English Court of Appeal authority leaving it to the Supreme Court to correct the law if appropriate … The approach was stated by Holmes LJ in McCartan  v  Belfast Harbour Commissioner [1910] 2IR 470 at 494:

 

                                        It is true that although we are not technically bound by decisions of the … Court of Appeal in England we have been in the habit [in] adjudicating on questions as to which the law of the two countries is identical to follow them.  We hold that uniformity of decisions is so desirable that it is better even when we think the matter doubtful to accept the authority of the English Court of Appeal and leave the error, to be corrected by the tribunal whose judgment is final on both sides of the channel.”

 

                    This approach was followed [by] this court in Re Northern Ireland Road Transport Board and Century Insurance Limited [1941] NI 77.”

 

26.     Against that background, we have no doubt that the principle which Elias LJ set out at paragraph 13 of the English Court of Appeal judgment in Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR is one which applies also in Northern Ireland:

 

                    “[13]   [The GB equivalent of Article 130(4) of the Order] focuses on the need for an employer to act reasonably in all the circumstances.  In A  v  B [2003] IRLR 405 the EAT … held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where … the employee’s reputation … is potentially apposite.  In A  v  B the EAT said this:

                                        “Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

 

27.     In our view, the implications of the Roldan principle is that, in considering whether an employer has stepped outside, or stayed inside, the range of reasonable responses, in relation to the extent or quality of the investigation, a tribunal should take account of the question of whether the relevant allegations have serious implications for the claimant’s reputation.  There is no enhanced standard of proof in relation to disciplinary allegations which relate to alleged criminal misconduct, but the fact that the allegations relate to criminal misconduct, or the fact that particular allegations have serious implications for an employees reputation, are matters to be taken into account in determining whether, in the circumstances of the particular case, the quality and scope of the employer’s investigation has kept it inside, or put it outside, the range of reasonable responses of a reasonable employer.

  

28.     How can the “range of reasonable responses” concept be properly applied in a situation in which an employer has dismissed a claimant because of that employer’s assessment of the credibility of various witnesses, such an assessment having been carried out in the context of internal disciplinary proceedings?

 

29.     In our view, that question is accurately answered in the commentary in “Harvey on Industrial Relations and Employment Law”, at Division D1, paragraph 974:

 

                    “This basic principle is reflected in a number of different facets. … As the EAT put it in Linfood Cash and Carry Ltd  v  Thomson [1989] IRLR 235, … the relevant question is whether an employer acting reasonably and fairly in the circumstances could properly have accepted the facts and opinions which he did. … [A tribunal] must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did. …”

 

30.     Article 130A(2) of the Order provides as follows:

 

                    “[2]     Subject to [compliance with paragraph (1) of Article 130A], failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

31.     The scope of Article 130A has been construed widely in case law.  However, even as so construed, it clearly does not apply to failures on the part of the employer which go beyond the merely procedural.

 

32.     In relation to failures to which it applies (“relevant failures”), the effect of Article 130A can be summarised as follows.  The relevant failures are not to be regarded, as by themselves making the dismissal “unfair” within the meaning of Article 130(4), if the employer shows that it would have decided to dismiss the employee even if the relevant failures had not occurred.

 

33.     In Roldan, at paragraph 73, Elias LJ, on behalf of a unanimous Court of Appeal, made the following observations:

 

                    “[73]   The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other.  Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred.  But they are not obliged to believe one employee and to disbelieve another.  Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her vantage point.  Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. … In my view, it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of one side or the other.”  [Our emphasis].

 

34.     We respectfully agree with the propositions set out in that extract from Roldan.  However, just because it would be perfectly proper, in a case in which the evidence in favour and against the alleged misconduct is relatively finely balanced, to give the alleged wrongdoer the benefit of the doubt, it does not necessarily follow that a failure to give the “accused” the benefit of such a doubt would put the employer outside the range of reasonable responses.

 

The evidence

 

35.     Mr McCracken (a member of the respondent’s first stage disciplinary panel) and Ms Turbitt (a member of the respondent’s second-stage, appeal panel) both gave evidence on behalf of the respondent.  The claimant gave evidence on his own behalf.

 

36.     We saw an agreed bundle of documents, along with some separate miscellaneous documents.  We told the parties that, for evidential purposes, we would not have regard to any document within the bundle unless our attention had been drawn to that particular document, by one or more of the parties.

 

Liability:  The facts and our conclusions

 

37.     At the first stage of the disciplinary process, the disciplinary panel (“the DP”) consisted of Mr William McCracken, the respondent’s HR Manager and Mr James McCusker, their Warehouse and Manufacturing Manager.  At the second stage of the disciplinary process, the members of the appeal panel (“the AP”) consisted of Ms Suzanne Turbitt, an Acting HR Manager and Ms Celine Bradley, the respondent’s Global Vice President (Operations).

 

38.     It seems that, in general, the appeal panel regarded its role as being to review the adequacy of the determinations which had been made by the disciplinary panel, while being willing to re-investigate, and to reconsider, in relation to any points which arguably had not been adequately addressed by the Disciplinary Panel. 

 

39.     The fact that the appeal panel saw its role as being primarily a reviewing role is indicated by the fact that the appeal panel chose to meet with the disciplinary panel, in private, for the purpose of exploring, with the members of the DP, the reasons for their decision to dismiss the claimant. 

 

40.     An investigation in relation to the alleged incident was carried out under the respondent’s disciplinary procedure.  The investigation report summarised the relevant factual issues in the following terms:

 

                  “[The claimant] parked car behind Building 6 and walked back to entrance of car park. 

 

                  [X] parked his car in main building car park and walked back to work in Building 9.

 

                  [The claimant] waited at third tree at entrance opposite security hut.

 

                  Two individuals met and there was verbal confrontation between the two of them.

 

                  [Expletives].

 

                  Physical confrontation alleged to have happened  -  nose to nose contact.

 

                  Pushing and head-butted alleged by [X] and witnessed by John Sherlock [a Security Officer].

 

                  No physical violence confirmed by [the claimant] and witnessed by Ryan Teggart [a work colleague of the claimant’s].

 

                  Conclusion to disciplinary panel following investigation.

 

                  Consideration given to disciplinary action for [the claimant] due to physical and verbal nature of altercation.

 

                  Consideration given to disciplinary action for [X].”

 

41.     The recommendations of the investigator were accepted by the respondent.  Disciplinary action was initiated against the claimant.  Disciplinary action was also initiated against X.

 

42.     The ultimate outcomes of the disciplinary process were as follows.  First, X was subjected to a written warning, because he had shouted at the claimant from the car.  Secondly, the claimant was dismissed.

 

43.     According to the investigation report:

 

                    “Location

 

                    Initial near miss in car happened at entrance to car park for Building 6/9.

      

                    Altercation happened on pavement opposite security hut of Building 6/9.

 

                    Witnesses

 

                    John Sherlock (Security Officer).

 

                    [The claimant] (Alleged Harasser).

 

                    [X] (Alleged Victim).

 

                    Ryan Teggart (Employee  -  Secondary Production, witnessed altercation).

 

                    David Smith (Employee  -  Production, witnessed car incident).

 

                    Gary Hedley (Passenger in [the claimant’s] car, witnessed car incident).

 

                    Declan McIlduff (Employee, Production, witnessed car incident).

 

                    Car Incident

 

                    [X] was leaving Building 6/9 car park after being unable to find car space.

 

                    [The claimant] was turning right from Charlestown road into car park.

 

                    [The claimant] cut across the left-hand lane stop lines on the road causing [X’s] car to stop with a jolt to avoid a collision.

 

                    [X] allegedly shouted abuse at [the claimant] and made hand gestures.

 

                    The incident was a near miss and is captured on CCTV  -  DVD attached.”

 

44.     Throughout the internal disciplinary proceedings, and throughout the present litigation, the claimant denied that he head-butted X.  It has been alleged by and on behalf of the claimant that there were no adequate grounds for the conclusions of the panels (the Disciplinary Panel and the Appeal Panel) that the claimant had been guilty of aggressive behaviour during the course of his altercation with X.  However, we have no doubt that the respondent had ample evidence upon which to base its conclusion that the claimant had indeed engaged in aggressive conduct during the course of the confrontation with X.  In our view, such conclusions are amply justified in light of statements which the respondent had available, from John Sherlock and Ryan Teggart, and indeed from the claimant himself.

 

45.     The original allegations against X, in his disciplinary process, were outlined in a letter to X which was sent by Mr McCracken, to him, on 24 May 2011.  According to that letter, the relevant allegations were “… allegations of aggressive behaviour and excessive bad language”.  In deciding, on 26 May 2011, that the relevant allegations, or one of the allegations, or part of one of the allegations, was or were well-founded, and that a written warning was an appropriate sanction, the disciplinary panel gave the following reasons:

 

                    “Shouting at colleagues through a window of [a] car not acceptable.  We did accept he was not the aggressor in the confrontation.”

 

46.     The charges against the claimant were outlined to him in a letter from Mr McCracken dated 24 May 2011.  In that letter the subject-matter of the disciplinary process was stated to be as follows:

 

                    “The purpose of the Meeting is to discuss allegations of physically violent behaviour.”

 

47.     Accordingly, the only allegation against the claimant is one of violent behaviour, and an allegation of aggressive behaviour was not one of the disciplinary charges against him.  The outcome of the disciplinary process, at the first stage of the disciplinary process, was outlined to the claimant, by the disciplinary panel, in a letter dated 16 June 2011, in the following terms:

 

                    “…

 

                    The disciplinary hearing was to consider the allegation that on 11 May 2011 you behaved in a physically aggressive manner towards a fellow employee.

 

                    …

 

                    … [We] find the allegation to be substantiated in that you confronted Gary Jacobs in an angry and aggressive manner and in this angry exchange you head-butted him …”

 

48.     In the same letter, the Disciplinary Panel gave their reasons for finding the
head-butting allegation to be factually well-founded.  They gave their reasons in the following terms:

 

                    “In reaching our decision we consider the following:

 

·                 As recorded on Security camera, on [11] May 2011, as you were driving into work, you cut across the entrance of Building 9 causing a near miss between your car and [X’s] car.

 

·                 As witnessed by yourself and others, X responded to this by shouting and gesturing at you.

 

·                 You continued to drive, parked your car at Building 6 and as witnessed by the Security Guard [Mr Sherlock] you deliberately deviated from your normal way to work in order to confront [X] at the site entrance.

 

·                 Everyone who witnessed the confrontation described it as an angry confrontation.  On review of the evidence we believe you initiated the confrontation and throughout the incident you were the main aggressor.

 

·                 Although not seen by other witnesses, the Security Guard witnessed a head-butt.  He had clear view of the incident and understood the context in which the confrontation occurred.

 

·                 Witness statements and the video coverage show [X] pointing at security cameras and stating that the head-butt would be captured by the camera.  The head-butt was not recorded by the Security Camera, however, we accept that [X’s] actions support the allegations of physical violent behaviour.”

 

49.     Two points are worth noting in that context.  First, the DP regarded the question of whether or not the claimant was the “main aggressor” in the confrontation as being of significance in the context of deciding whether or not the claimant had
head-butted X.  However, long before the conclusion of the disciplinary process conducted in respect of the claimant by the DP, the two members of that panel had already concluded that the claimant was the main aggressor.  (They had so concluded in arriving at their determination in relation to the outcome of the disciplinary charge against X).  Secondly, the DP clearly saw the credibility of X as being of central importance in the context of the allegation.  (See the last
bullet-point quoted above).

 

50.     There were four people, apart from the claimant and X who were in the vicinity at the time of the relevant confrontation between the claimant and X.  The four were as follows:

 

          (1)    A Mr Sherlock, a security officer.

 

          (2)    a Mr Teggart, who worked in the same part of the factory as the claimant, but who was not a friend of the claimant.        

(3)        a Ms Judge and

 

(4)        a Ms Crawford.

 

 

51.     During the course of the disciplinary process:

 

          (1)    Ms Judge and Ms Crawford were each interviewed once.

 

          (2)    Mr Sherlock was interviewed three times and Mr Teggart was interviewed three times.

 

52.     It seems to us that the respondent’s disciplinary authorities (both at DP and at AP level) had ample grounds for concluding that Ms Crawford and Ms Judge did not see all of the relevant incident. 

 

53.     Accordingly, that left the following, as actual or potential witnesses to the incident:

 

          (1)    The claimant.

 

          (2)    X.

 

          (3)    Mr Sherlock and

 

          (4)    Mr Teggart.

 

54.     The DP hearing in respect of the claimant was re-convened on three separate occasions.  The first hearing took place on 26 May, then there was a hearing on 1 June, then there was a hearing on 3 June, and finally there was a hearing on 15 June.

 

55.     Prior to the first day of the hearing, both Mr Sherlock (on 11 May) and Mr Teggart (on 13 May) had been interviewed, as had Mr Jacobs (on 12 May). 

 

56.     During the period between the date of the first DP hearing and the date of the last DP hearing, Mr Sherlock was interviewed again, Mr Teggart was interviewed again (on two separate occasions) and Ms Judge and Ms Crawford were interviewed. 

 

57.     Throughout the disciplinary process, the respondent had available to it relevant CCTV footage.  That footage showed the original encounter, between the claimant and X on the road; it showed that Mr Teggart and Ms Judge and Ms Crawford were in the general vicinity at the time of the relevant confrontation; and it showed X immediately after the confrontation.

 

58.     The confrontation took place at a location that was not within the scope of the CCTV footage.  Clearly, the DP had to arrive at conclusions on two conflicting versions of events.  The main basis upon which they arrived at those conclusions is made clear in the last three bullet points in Mr McCracken’s letter of 16 June 2011 (whereby the claimant was notified of the outcome of the disciplinary process thus far):

 

                    “●       Everyone who witnessed the confrontation described it as an angry confrontation.  On review of the evidence we believe you initiated the confrontation and throughout the incident you were the main aggressor.

 

                    ●        Although not seen by other witnesses, the Security Guard witnessed a head-butt.  He had a clear view of the incident and understood the context in which the confrontation occurred. 

 

                    ●        Witness statements and video coverage show X pointing at Security Cameras and stating that the head-butt would be captured by the camera.  The head-butt was not recorded by the Security Camera, however we accept that [X’s] actions support the allegations of physical violent behaviour”.

 

59.     An important conclusion, in the context of the DP’s conclusion that a head-butt had indeed taken place, was the DP’s conclusion that the claimant was the main aggressor in the confrontation.  However, the claimant’s DP hearing had not begun until 2.30 pm on 26 May.  By that time (during the course of the X disciplinary hearing, which had begun at 12 noon on that date), the DP, as already noted above, had already concluded that the claimant was the main aggressor during the course of the relevant confrontation.  Accordingly, there is force in Mr Mackle’s argument that the DP had approached the issues with a preconceived view.  That, in itself, would be sufficient to render this dismissal unfair, if the matter had not been corrected through the respondent’s internal appeal progress.  However, the claimant explicitly accepted that the appeal panel was not biased.  Accordingly, any allegations of bias in relation to the DP cannot provide a successful basis for an unfair dismissal claim.

 

60.     According to the claimant, the DP also showed bias by not approaching Ms Judge and Ms Crawford, for their versions of events, until the claimant had prompted them to do so.  In our view, it is a pity that the DP did not make the approach to two women until they had been prompted to do so by the claimant.  However, we note that the contribution of those two individuals, to the resolution of the factual issues in this case, was relatively peripheral.  Accordingly, we do not accept that the relevant omissions are indicative of bias.

 

61.     The appeal hearing took place on 27 July 2011.  After the appeal hearing, the appeal panel (“AP”) carried out the following investigation:

 

          (1)    The AP met the DP, to get a briefing from the DP, as to why the latter body decided that the claimant head-butted;

 

          (2)    on 7 September, the AP interviewed Mr Sherlock; and

 

(3)        on 8 September the AP interviewed X.

 

62.     The claimant was never shown the notes of the 7 September or 8 September interviews.  In our view, that omission, in itself, is a procedural flaw of such gravity that this, in itself, put the dismissal decision outside the range of reasonable responses open to a reasonable employer, unless the respondent can successfully rely upon Article 130A(2) of the Order in that context.  (See below).

 

63.     On 12 September 2011, the claimant was informed by the appeal panel that his appeal had been unsuccessful.  Why did the AP uphold the finding that the claimant had head-butted?  Its reasoning is mainly to be found in the following extract from the 12 September letter:

 

                  “We accept there was an angry exchange between yourself and X.  However on reviewing and considering the evidence we believe that you were the aggressor.  We are also satisfied that the incident and the allegations were thoroughly and properly investigated and we have found no evidence of any bias against you.

 

                  We uphold the disciplinary panel’s belief that Mr Sherlock, the Security Guard was the only witness who had a clear view of the incident and had also witnessed the sequence of events that led to the confrontation. 

 

                  We do not agree that the witness statements taken from [Mr Teggart, Ms Crawford and Ms Judge] were ignored.  Serious consideration was given to all of the evidence presented.  The witness statement given by Mr Sherlock was the preferred evidence because he had a clear view of the incident and the sequence of events that led up to the confrontation”.

 

64.     From that extract, it can be seen that stated reasons for the Appeal Panel’s determination were as follows:

 

          (1)    They believed that the claimant was the aggressor during the course of the relevant confrontation. 

 

          (2)    They believed that the allegations had been thoroughly and properly investigated at DP stage.

 

          (3)    The rejected the claimant’s contention that the DP’s decision had been tainted by bias. 

 

(4)        They considered that Mr Sherlock was the best placed, of all the “disinterested” witnesses, to give evidence as to whether there had been a head-butt. 

 

(5)        They rejected the view that the DP had ignored the witness evidence from Mr Teggart, Ms Crawford and Ms Judge. 

 

65.     During the course of the tribunal hearing, Mr Mackle has argued that, before deciding to dismiss the claimant, the respondent should have explored the question of whether or not Mr Sherlock had any connection with X, which could have caused him to be biased in favour of X.  We reject that contention.  We consider that, in the normal course of events, an employer is entitled to approach evidence given by one of its workers on the assumption that that worker will do his best to tell the truth.  In our view, in situations like the context of the present case, an employer certainly does not step outside the range of reasonable responses by approaching evidence from workers on that basis. 

 

66.     Mr Mackle has also argued that the decision of the AP fell outside the range of reasonable responses, because the AP was unduly influenced by the attitude of the DP.  Again, we cannot accept that contention.  As is quite common, the role of the AP in this firm was, in part, a role of reviewing the adequacy and appropriateness of the DP decision.  Against that background, it was entirely appropriate for the AP to enquire into the DP’s reasons for arriving at the decision which the DP did arrive at.

 

67.     As already noted above, the credibility of X was a crucial factor in the DP’s conclusion that the claimant had indeed head-butted X.  And, as also noted above, the AP’s conclusion that the DP had adequately carried out its fact-finding role was an important consideration in the AP’s decision to uphold the original (DP) decision to dismiss.  Furthermore, the credibility of X was directly relevant to the AP’s own decision, as is clear from the fact that the AP felt it appropriate to re-interview X (that AP re-interview being the third occasion on which X had been asked for a statement in connection with the confrontation).

 

68.     In our view, the disciplinary allegation against the claimant in this case was of sufficient seriousness, and it had sufficient potential to damage the claimant’s reputation, to bring the relevant disciplinary process within the scope of the Roldan principle (as set out at paragraph 13 of the Roldan judgment, which has already been quoted at paragraph 26 of this Decision, above).

 

69.     When X was interviewed on 12 May (see above), his comments were not recorded in the resulting statement, which he was not asked to sign.  Indeed, his comments were not recorded verbatim.  Instead, notes of his comments were made (by Mr Michael Freeland).  According to the key portion of those notes:

 

                    “[The claimant] shoved [X] with his hands several times  -  Knocked [X] with his chest  -  [the claimant] “have you got something to say to me” [X], “no already said you were on wrong side of road”  -  [the claimant] “if you ever say anything like that again I’ll knock you out”

 

                    Close contact nose to nose.  Tried to back away but [the claimant] followed and continued to push  -  actual drawback of the head and head-butt  -  [X] was orientated to side and the head-butt glanced to the side of right eye.”

 

70.     It will be noted that, according to the statement of 12 May which Mr Freeland attributed to X:

 

          (1)      The claimant shoved X with his hands several times.

 

          (2)      The claimant knocked X with his chest.

 

          However, the first Sherlock statement (on 11 May) made no reference to any shoving, or knocking or pushing; and, according to the second Sherlock statement (of 26 May), there was “no pushing”; and the third Sherlock statement (on 7 September 2011, the day before the AP re-interview of X) confirmed that there was “no pushing”.

 

71.     Accordingly, X’s reported contention, in the statement of 12 May, regarding shoving and knocking, was inconsistent with the recollection of events of Mr Sherlock, as recorded on behalf of the respondent.

 

72.     Against that background, the Appeal Panel explored the issue with X during the 8 September interview.  According to X’s version of events during that interview:

 

                    “[The claimant] carried on and pushed and shoved me, then he
head-butted me.”

 

73.     In response to that comment, Ms Turbitt, on behalf of the AP, asked the following question:

 

                    “Describe how he was pushing and shoving you.”

 

          X replied:

 

                    “It was not with his hands, he was shoving with his chest, walking into me, I was stepping back.”

 

74.     When the discrepancy between the latter comment, and X’s original statement, was pointed out to him, he made the following comments:

 

                    “That’s a misinterpretation, Michael Freeland did not take down exactly what I said.”

 

75.     Accordingly, during the 8 September interview, X was accepting that the account of events in the written record of his 12 May interview was substantially inaccurate in significant respects.

 

76.     In accepting that, he also made it clear that, in his view, the inaccuracy was the result of a failure on the part of Mr Freeland to properly note what X was in fact saying.

 

77.     In that situation, it would have been easy for the Appeal Panel to put those comments to Mr Freeland, to find out whether Mr Freeland agreed that the inaccuracies in the written record were the result of his (Mr Freeland’s) error, or to see whether Mr Freeland was asserting that the record of the 12 May interview, in the material respects, is a substantially accurate account of what X had actually said.

 

78.     If, in response to such an enquiry, Mr Freeland had come back with the latter answer, that would have put X’s credibility, as a witness, very much into doubt.  In our view, this situation is not unlike the factual situation in Roldan.

 

79.     In Roldan, the claimant had been accused of inappropriate behaviour in relation to a particular patient.  According to her accuser (Ms Denton), when the claimant was misbehaving, she “looked around to check if [her] actions were being observed”.  Against that background, an issue arose as to whether or not the side room in which the patient was being treated had the door open, and whether the room’s window would be covered by a closed blind.  The Employment Tribunal concluded that the decision to dismiss the claimant was a decision which was outside the range of reasonable responses, because the case turned on the conflict of evidence between the claimant and Ms Denton, and the employer therefore ought to have tested Ms Denton’s evidence where it was possible to do so, and the one objective area where the evidence might have been tested concerned the question of whether it was likely that the claimant would have been able to see out of the window or whether the blinds would have been drawn.  The Court of Appeal upheld that conclusion of the tribunal.

 

80.     In our judgment, in the present case, the employer stepped outside the range of reasonable responses by not seeking to test X’s credibility on the statement - accuracy issue, which was an issue in respect of which that credibility could easily have been tested.

 

81.     We do not consider that Article 130A(2) has any effect in relation to this aspect of the matter, because Article 130A(2) is concerned only with procedural failings, and this was a failing which was of central importance in the context of the investigation aspect of the case.

 

82.     The other main failing which we have identified, at paragraph 62 above, in connection with the disciplinary proceedings against the claimant (the failure to allow him to comment in respect of the outcomes of the re-interviews of Sherlock and of X) is a purely procedural failing.  We therefore have to consider, in that context, the effect of Article 130A(2).  In our view, the respondent in this case has met the requirements of that paragraph, in that we are satisfied, on the basis of all of the evidence, that even if the claimant had been allowed to comment upon the outcomes of the re-interviews of Sherlock and of X, the respondent would still have come to the same conclusion, regarding the head-butting issue.

 

83.     According to Mr Mackle, the respondents stepped outside the range of reasonable responses, in concluding that the claimant had head-butted X, because X had sustained no injury, and there was not a mark on him, following the alleged
head-butting.  We reject that argument, in relation to that matter.  In our view, the respondent did not step outside the range of reasonable responses in failing to conclude, on account of the lack of injury or mark, that head-butting did not occur.  In particular, it would be entirely possible for head-butting to have been carried out with the intention of subjecting X to only a very glancing blow.

 

84.     On behalf of the claimant, it has been suggested that the witness statements, throughout the disciplinary process, ought to have been noted verbatim (rather than relying upon summary notes), that they ought to have been contemporaneously agreed with the witnesses at the time, and that they ought to have been signed.  In our view, all of these safeguards would have been desirable.  However, we do not consider that the employer, in the circumstances of this case, stepped outside the range of reasonable responses by failing to arrange for any one, or more, or all, of those safeguards.

 

85.     In that context, we note that the claimant does not assert that any of the notes of his own statements misrepresent what he said in any way.  We note that Mr Sherlock’s statements (during the three interviews which were held with him during the course of the disciplinary process) are couched in such clear terms that there is little room for any argument that the reported accounts, in the context of the alleged head-butting, were the result of misinterpretation of his actual comments.  Finally, we note that, during his second interview, Mr Teggart was shown notes of his first interview, and acknowledged that those notes were accurate.

 

86.     Against the background outlined in the last paragraph above, we have concluded that, even if the employer had stepped outside the range of reasonable responses, by failing to incorporate, in the disciplinary process, any of the safeguards mentioned at paragraph 85 above, the dismissal decision would be saved from being thereby rendered unfair, because of the effect of Article 130A(2).  In our view, the omissions which are relevant in the present context relate to procedural shortcomings only.

 

The remedies issues

 

87.     The following three issues have to be addressed:

 

          (1)    Should we make an order for the reinstatement or re-engagement of the claimant?

 

          (2)    What is the amount of any basic award element of any unfair dismissal compensation which should be awarded to the claimant?

 

          (3)    What is the proper amount of any compensatory award element of any unfair dismissal compensation award?

 

A compensatory award?

 

88.     As will be explained below, we have decided not to make an order for reinstatement or re-engagement of the claimant.  Accordingly, we must consider making an award of compensation.  As already noted above, any unfair dismissal compensation award consists of a basic award element and a compensatory award element.  It is convenient first to consider the compensatory award element. 

 

89.     We have decided not to make any compensatory award. 

 

90.     Article 157(1) of the Order provides that the amount of the compensatory award is to be:

 

                  “… such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the [claimant] in consequence of the dismissal …”

 

91.     In our view, in considering the “just and equitable” aspect of the provisions of Article 157(1), we are entitled and obliged to take account of the percentage chance that the claimant would have been dismissed in any event, even if the respondent had not failed to test the credibility of X (in the manner which was described at paragraph 77 above). 

 

92.     In our view, if the relevant failure had not occurred, there is a 100% chance that the relevant decision-makers would have believed that the claimant had head-butted X (while acting within the range of reasonable responses).

 

93.     We do not know whether X’s credibility would indeed have been destroyed if it had been tested (in the manner envisaged at paragraph 77 above).  However, it seems to us that, even if we assume, in favour of the claimant, that the relevant testing of X’s credibility would have destroyed that credibility, the respondent would still have been left with the following situation:

 

          (1)    The claimant denied that he had head-butted X, but this was obviously self-serving testimony. 

 

          (2)    Mr Sherlock was best placed, of any independent witness, to see what happened during the relevant confrontation.  According to his statements, he did see everything that happened during that confrontation.  According to him, he did see the claimant head-butting X.  According to his 7 September statement, he saw the claimant putting his head back, and coming forward, at the time of the alleged head-butting.

 

          (3)    Mr Teggart was the only other independent witness who may have seen the whole of the confrontation.  However, in his various statements, Mr Teggart was unable to assert unequivocally that he certainly saw all of the confrontation.  Therefore, although Mr Teggart provides some support for the claimant, by saying that he did not see the head-butt, he cannot unequivocally state that there was none.  The best that he can do is to state that “in my view it didn’t happen” [our emphasis].  (The quoted comments are from Mr Teggart’s second statement).

 

The basic award

 

94.     The parties were agreed that, subject to any reductions, the claimant is entitled to a basic award of £465.

 

95.     Against the following background and for the following reasons, we have decided to reduce that amount by approximately 25%, pursuant to Article 156(2) of the Order.

 

96.     Article 156(2) provides as follows:

 

                  “(2)  Where the tribunal considers that any conduct of the [claimant] before the dismissal … was such that it would be just and equitable to reduce … the amount of the basic award to any extent, the tribunal shall reduce … that amount accordingly”.

 

97.     We believe that the claimant was the main instigator of the relevant confrontation between X and himself.  We believe that he behaved aggressively during that confrontation.  We believe that, by instigating that confrontation, the claimant created a serious risk that the encounter would degenerate into serious acrimony. 

 

98.     In reducing the amount of the basic award pursuant to Article 156(2), we have taken no account of the head-butting allegations, because none of us is satisfied, on the balance of probabilities, that the claimant did head-butt X.

 

99.     In relation to that matter, in the context of Article 156(2), we have had to decide, on the basis of all the evidence which was made available to us (as distinct from deciding on the basis of the evidence which was available to the internal disciplinary authorities of the respondent) whether we ourselves are satisfied, on the balance of probabilities, that the head-butting did, in reality, occur. 

 

100.   In arriving at our conclusions in relation to that matter, we have had the advantage (which was not available to the internal disciplinary authorities of the respondent) of seeing and hearing the claimant give evidence on oath, evidence which was the subject of skilled cross-examination. 

 

101.   On the other hand, in carrying out the relevant assessment, pursuant to Article 156(2) of the Order, we have suffered from some disadvantages, in comparison with the respondent’s disciplinary authorities.  First, we have not seen and heard X give his version of events.  Secondly, we have not seen and heard Mr Sherlock give his account of events. 

 

102.   We regarded the claimant, in his evidence to this tribunal, as a relatively impressive witness.  His evidence was internally consistent.  It was mainly consistent with the known facts.  His demeanour and manner of giving evidence was relatively impressive.  In assessing the credibility of his oral testimony, we of course took account of all of the other evidence which was available to us.  The outcome of that assessment of his testimony was as follows.  Two members of this tribunal were satisfied, on balance, that the claimant did not head-butt X.  The other member of the tribunal was not sure whether he had done so.

 

Reinstatement/re-engagement?

 

103.   We have decided not to make an order for reinstatement/re-engagement. 

 

104.   In deciding whether or not to make any such orders, we are obliged and entitled to have regard to the question of whether it is practicable for the employer to comply with the relevant order.  (See Article 150 of the Order). 

 

105.   In that connection, it is appropriate for us to have regard to the following matters, which (in our view) would render it impracticable for the employer to comply with any order for reinstatement or re-engagement.  Both of the respondent’s disciplinary authorities, at first stage level and at appeal level, were genuinely convinced that the claimant had assaulted another employee.  The claimant feels a strong sense of grievance against the employer, because of what he sees as the injustices perpetrated by the employer during the course of the disciplinary process.  It seems to us that this combination of circumstances has resulted in an irretrievable breakdown of trust and confidence between the claimant and the respondent. 

 

Interest

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:    23-24 April and 17 May 2012.

 

Date decision recorded in register and issued to parties: