Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS    

 

CASE REF:    1211/12    

 

 

 

CLAIMANT:                 Richard Maguire

 

RESPONDENT:           Quinn Radiators Ltd

 

 

 

DECISION     

 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The tribunal has decided that the claimant contributed to his dismissal, and that the compensatory award in his favour should be reduced by 60%.  Accordingly we order the respondent to pay to the claimant the sum of £15,930.60, as set out at paragraph 4.14 of this decision.

 

 

Constitution of Tribunal:

 

Chairman:                   Ms E McCaffrey

 

Members:                   Dr C Ackah

                                   Mr J Barbour

 

 

Appearances:

 

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Napier and Sons Solicitors.

 

The respondent was represented by Mr Mulqueen, Barrister-at-Law, instructed by Jones Cassidy Jones Solicitors.

 

 

 

ISSUES

 

1.       The issues for the tribunal to consider were as follows.

 

          (1)    Did the dismissal of the claimant by the respondent on 30 March 2012 follow the statutory dismissal and disciplinary procedures?

 

          (2)    Did the respondent follow its own procedures correctly in dismissing the claimant?

 

(3)    If there was a breach of procedure by the respondent, would the outcome have been the same if the procedure had been followed correctly? 

 

          (4)    Was the dismissal of the claimant by the respondent substantively fair?  What was the reason for the respondent’s dismissal of the claimant?

 

(5)    Did the claimant contribute in any way to his dismissal?

 

(6)    If it is found that the claimant contributed towards his dismissal should any award in his favour be reduced, and if so, by what percentage?

 

 

FACTS

 

2.       The panel had the benefit of hearing evidence from the claimant and from Mr Liam McCaffrey (former Chief Executive Officer of the Quinn Group) on behalf of the claimant and from Mr Graeme Buchanan, Mr John McCooey, Mr Nick Whitwell and Ms McStravick on behalf of the respondent.  On the basis of the evidence received and on the documents which were opened to us, we make the following findings of relevant facts.

 

2.1     The claimant was employed by the respondent and at the date of his dismissal for breach of exclusivity of service, he was Manager of the Quinn Merriott Design Radiators Division.  The allegations made against the claimant were that he had breached a clause of his contact regarding exclusivity of service by providing information to a competitor company named Spantherm Ltd, and that he had instructed a more junior member of staff to provide drawings to the same company.  Within his post at Quinn Merriott, his responsibility was to oversee the design section of the Quinn Radiators bespoke products, the sales function in both Ireland and UK and the Design Office.  He had held his position from April 2011, but had worked for the Quinn Group from 1987 in various capacities.  He had started his career with Quinns in the prestress flooring division and had subsequently worked as a General Manager, dealing with insulation products both for Quinn Therm and Quinn Litepac.  In his final position, he earned a salary of £55,000 per annum, and received a car allowance, Company mobile phone and had the ability to earn up to 30% of his salary by way of bonus.  Up to February 2011 he had a clear disciplinary record.

 

2.2     The challenges faced by the Quinn Group in recent years have been well publicised and it was clear that considerable changes had taken place within that business, not least the appointment of a new Chief Executive Officer Mr Paul O’Brien in 2011.  The Quinn Group comprises a manufacturing arm which had four divisions, namely CSI (Construction Industry Supplies), radiators, plastics and container glass.  In addition there is a financial services division which provides mostly insurance products.  While the claimant had worked principally for the manufacturing side of the business, he did work for the Financial Services Group for approximately a year and a half before returning to manage Merriott Radiators.

 

2.3           The core business of the Quinn Group is cement production.  It was the unchallenged evidence of Mr Liam McCaffrey (Chief Executive Officer of the Quinn Group until early 2011) that cement production generated 25 to 30 times the profitability of the combined profitability of the Concrete Products Divisions.  He confirmed that when Quinns had entered the cement business, they did not expand their concrete products business and preferred to sell cement to third parties.  This meant that some of their cement customers were also competitors in the production of concrete products.  He confirmed that the group very much had the policy of assisting these businesses at all levels to maintain and support customer relationships and that this included utilising Quinn’s engineering and product design/quality regimes to assist customers. 

 

2.4     In July 2011 the claimant had sent an email to the Chief Executive of the Quinn Radiators Group, Paul O’Brien, expressing his dissatisfaction at how the Company was being managed.  The claimant subsequently met Mr O’Brien on 26 July 2011, but he was unhappy at the outcome of the meeting.  He raised a grievance in relation to this matter and other matters in October 2011 but his grievance was not upheld.  The claimant did not appeal the outcome of his grievance.

 

2.5     It was put to Mr Whitwell that in late January/early February 2012, he had advised the client not to attend a meeting at which Paul O’Brien would be present in Newport in South Wales.  The claimant indicated that he had prepared a presentation for the meeting and flown over to Newport and was then told by Mr Whitwell that it was not appropriate for him to attend the meeting.  Mr Whitwell indicated that this was not the case.  He said he had had a conversation with the claimant pointing out that there was a potentially difficult atmosphere in the room and was he happy not to attend?  He indicated that he had left it open for the claimant as to whether or not he attended.  His comment was that he knew that the claimant had a grievance against Paul O’Brien and thought it might be a difficult atmosphere.    

 

2.6     On 20 February 2012 the claimant received a letter from Mr Whitwell indicating that consideration was being given to his redundancy and advising that his role as manager of the Merriott Division of Quinn Radiators was potentially at risk.  Three days later on 23 February 2012, the claimant was handed a letter by Brenda McStravick, Human Resources Manager indicating that he was being suspended pending an investigation.  Ms McStravick told him that he was to leave the building and he had five minutes to collect his personal items before being escorted off the premises by Ms McStravick.  The letter had been written by Nick Whitwell, Managing Director and it read as follows:-

 

                  “Dear Richard

 

                  RE:  SUSPENSION OF WORK DUTIES

 

                  I wish to advise that the Company has received information of a serious allegation against you which requires investigation.

 

                  It is therefore been decided that due to the nature and potential seriousness of the allegation, which requires detailed investigation, that you should be suspended in full pay from work with immediate effect.

 

                  The suspension is in order to allow us to conduct the investigation impartially and fairly and is in no way a form of disciplinary action against you.

 

                  You are requested to remain available should the Company need to contact you.  I would ask, at this stage, that you do not contact any of the Company’s customers, suppliers or your work colleagues.

 

                  You will be suspended from your duties during the process of this investigation and you should stay away from the Company’s premises and not contact any of your fellow employees without the Company’s written consent.  You will continue to receive your salary and other benefits during the period of investigation.

 

                  You will be invited to attend an investigation meeting in due course, the details of which will be communicated to you in writing. 

 

                  In the meantime, should you wish to discuss anything, please contact me.

 

                  Yours sincerely,

 

 

                  Nick Whitwell

        Managing Director”

 

2.7     The claimant subsequently received a letter from Graeme Buchanan dated 1 March 2012, inviting him to attend an investigation meeting on 5 March 2012.  The allegations of misconduct made against him were as follows:-

 

          (a)    acting in breach of the requirement for exclusivity of service.  It was alleged that he provided information, capability and services to another business which acted in competition with the business of group companies;

 

          (b)    instructing a less senior member of staff to provide services to the same.

 

2.8     A copy of the disciplinary procedure of the Company was sent to the claimant with this letter.  He was also advised that the misconduct of the nature alleged would normally be classified as gross misconduct.  He was also informed of his right to bring a “representative” with him to the meeting in line with Company policy.  The disciplinary policy and procedure of the Quinn Group defines an “employee representative” at Section 4 as being “a friend, colleague or representative”.  The same policy says that gross misconduct may result in a summary dismissal and it indicates that this can cover either a deliberate and serious failure to adhere to rules and regulations or may be a breach of standards of behaviour, where an employee deliberately carries out an action or conducts him/herself in a manner that is entirely unacceptable.  Gross misconduct is defined at Section 7 of the Disciplinary Procedure and we quote it in full.

 

“Gross or Serious Misconduct

 

2.9     An indicative list of examples of behaviour considered by the Company to be gross or serious misconduct follows.  This is not a complete or exhaustive list and is intended only as a general guideline.

 

·       Any act constituting a criminal act whether or not a prosecution or conviction results (other than minor motoring offences) which brings or is likely to bring the employee and/or the Company into disrepute.

 

·       Disregard of a safety precaution which is likely to endanger the individual concerned or others.

 

·       Offering or accepting a bribe.

 

·       Breach of confidentiality.

 

·       Fraud, dishonesty, theft, etc.

 

·       Commercial or industrial sabotage.

 

·       Falsification of records.

 

·       Persistent disregard of Company rules.

 

·       Wilful damage, deliberate wastage or unauthorised possession of Company property or property of another employee.

 

·       Assault including physically striking another person or threatening behaviour.

 

·       Deliberate refusal to obey legitimate instructions of a team leader, supervisor or manager.

 

·       Being incapable of satisfactory work performance as a result of the influence of alcohol or drugs.

 

·       Gross indecency.

 

·       Deliberate racial or sexual harassment”.

 

2.10   Paragraph 8.6 of the policy which details the practice in relation to suspension are set out as follows:-

 

                    “Code 8.6 Suspension – Stage 4

 

                    a.       A record of a suspension will be retained on an employee’s personnel file for one year unless there is a repetition within the agreed review period.

 

                    b.       Depending on the situation there are two different forms of suspension available:-

 

                              (1)      Suspension without pay.  If an employee’s work or conduct has not improved through the stages, he/she will be suspended without pay.

 

                              (2)      Suspension with pay.  An employee will be suspended with pay to facilitate an investigation.  In certain circumstances an employee will go directly to this stage, i.e. for instances of gross misconduct eg gross breaches of regulations.

 

                    c.       Before a suspension occurs, a meeting and discussion will be held.

 

                    d.       Employees will be made aware of the option to have a friend, colleague or representative present at this interview. 

 

                    e.       Except in the instance of gross misconduct, an investigation will occur before the suspension. 

 

                    f.        If there is still no improvement in the situation, there will be a progression to stage 5.”

 

2.11   The Company handbook includes a clause in relation to exclusivity of service which sets out the following:-

 

                  “Exclusive service – we expect all our staff to be fully committed to their job; to devote their whole time, attention and skills to the Company’s business; and use their best endeavours to promote the interests of the Company.  Accordingly, they should not be involved or have any interest in any business or occupation outside of the Company unless they first obtain the consent of the Company in writing.  Furthermore they shall not be involved in or have any interest in any activity which would not be in the Company’s best interests or interfere with their ability to carry out their duties as an employee of the Company.  If an employee has any doubt about or requires any clarification on this point, they should consult with the Human Resources Department in advance in order to avoid any possible misunderstandings at a later stage.

 

                  We are aware that some of our existing staff may already have certain business interests outside of their employment with the Company and, providing they can carry out their duties to the Company’s satisfaction, we are prepared to accept this on the basis that it is something they were involved in prior to commencing employment with the Company.  The above provisions will apply to any extended or new business interest which employees may be contemplating entering into.  Consent will have to be obtained where such staff is extending existing or entering new business interests.”

 

2.12   Mr Buchanan, who in February 2012 was the Group Treasurer and Head of Investor Relations and who had been with the Quinn Group for a relatively short period of time, carried out the investigation at the request of Brenda McStravick, the acting Head of Human Resources.  On 1 March he met Kieran Martin, who worked within the Technical Division of Quinn Radiators.    Mr Martin made it clear that he had prepared some drawings for the Spantherm project on the claimant’s instructions, and that he had over the years prepared some drawings for other divisions with authorisation from his manager.  He also emphasised that the Spantherm product would not, in his view, be in competition with Quinn’s Prestress product, which was for the commercial market.  On 12 March, Mr Buchanan also met Colm McCormack – like Mr Martin and the claimant, a longstanding Quinn group employee – who was the manager of Quinn Litepac.  That discussion showed that much of the direct contact with Dennis Doogan of Spantherm had been between Mr McCormack and Dennis Doogan.  He, too, emphasised that the product proposed by Spantherm was not the same as Quinn Prestress and that he saw the project as a business opportunity for Litepac.  He noted the project did not proceed because Quinn’s product was too expensive.  In both interviews, Mr Buchanan made it clear that Mr Martin and Mr McCormack were not being investigated. 

 

2.13   On 1 March, after meeting Kieran Martin, Mr Buchanan met the claimant at his investigation meeting.  The claimant arrived for the meeting with his brother who was to attend as his representative.  He was then advised by Ms Leddy, who was attending on behalf of the Human Resources Department that his representative must be a work colleague or a trade union representative.  The claimant pointed out that the policy stated a friend could attend this meeting.  Ms Leddy stated that this was an error.  The claimant was offered the opportunity to adjourn the meeting to get an alternative representative, but the claimant declined on the basis that he was keen to proceed due to the delay he had already experienced and stress.

 

2.14   The claimant also raised the issue that before a suspension occurred, a meeting and discussion should be held.  He pointed out that he had not been invited to a meeting prior to suspension and had not had the opportunity to be accompanied at any such meeting, which was a breach of the respondent’s procedure.  Mr Buchanan indicated that he was content to proceed in spite of this.  At the meeting, a number of emails were reviewed which were between the claimant and Dennis Doogan (a former Managing Director of Quinn Radiators) who by this stage was working for Creagh Concrete as a consultant.  It subsequently transpired that he was a director of Spantherm.  There had also been emails involving Colm McCormack, the General Manager of Litepac.  The claimant indicated that he had assisted Creagh Concrete, which were one of the biggest customers of the Quinn Group.  He did this because of his previous knowledge of the business through a management role within Litepac.  The claimant had been contacted by Mr Doogan, who had previously spoken to Colm McCormack about supplying some products to Spantherm.  Mr Doogan said that Colm McCormack could not give a price for a product without a more accurate drawing.  The claimant instructed Kieran Martin to prepare the necessary drawings so that the appropriate prices could be given.  The claimant indicated that he had known Dennis Doogan from when he worked for the Quinn Group and that Mr Doogan had left the Quinn Group six to nine months previously. 

 

2.15   When asked why he had not referred the call for Mr Doogan directly to Litepac, the claimant indicated that he was very familiar with all of the Quinn Group’s insulation products as he had been a General Manager within Quinn Therm and Quinn Litepac for many years and he had no hesitation in giving help as Mr Doogan was representing one of the group’s largest customers.  He indicated that there had been a tradition for many years that, irrespective of what division someone worked for, they should help out other divisions within the group.  The claimant confirmed that he had not sought any authorisation from anyone else for this work.  He said he never thought he needed authorisation as he was simply trying to “drum up business” for another group Company.  He confirmed at the investigatory meeting that the drawings were to help design a slab and these were for “U value calculations”, in other words, to confirm the insulation value of the finished combined concrete/insulation slab.  Later in the interview he said, “My primary focus was to get additional work for Quinn Litepac”.  For the first year it was predicted there would be sales of 11,000 cubic metres valued at £400k.  He went on to say “I have known Creagh Concrete for 20 years through my time in Prestress.  Creagh is the biggest Quinn customer”.  He pointed out that there was an email from Colm McCormack to Dennis Doogan in February 2012 showing that the matter was still “live” in relation to price information.

 

2.16   Following this investigatory meeting on 11 March 2012 the claimant sent a detailed email to Mr Buchanan with annotated minutes of the investigation meeting.  In that email he stressed two main points:  first of all, the allegation that the product being manufactured by Spantherm was in competition with products being manufactured by Quinn Prestress.  He set out the technical differences between the two products.  He also went on to make a second point, namely that in his view, he was helping an internal Quinn division with which he was very familiar.  He gave examples of where this had occurred previously and noted that Tony Lunney, the Managing Director of CIS, had authorised a visit by a senior member of the Creagh Company to the Litepac plant before Christmas 2011 in respect of this project.  The claimant also made it clear in his correspondence that he had refused an invitation to go to the Slieve Russell hotel and review his emails.  His attitude was that he would not do this unless the suspension was lifted and he would not access his emails with someone else “looking over his shoulder”.  Mr Buchanan did not meet Mr Lunney to get his version of the Spantherm project although he was more senior to the claimant and may have been able to clarify the previous practice.

 

2.17   Following this Mr Buchanan prepared notes of his investigation findings.  He found that the claimant had, without prior written approval, failed to maintain exclusivity of service to the Radiators Division.  He also noted that the claimant was aware he was dealing with former senior members of the group in collaborating in this initiative which, in his view, increased significantly the potential sensitivity of the project.  The claimant’s failure to deal with the initiative in an open and transparent way internally was a concern, as was the fact that the claimant had failed to mention the matter to his line manager and that he was still involved in the provision of drawings to Spantherm in late February 2012, once it was clear that the project was not going to provide Quinn Litepac with a sales opportunity.  The matter then proceeded to a disciplinary investigation.

 

2.18   On 26 March 2012 Mr John McCooey who had been appointed as Finance Director of the respondent company in January 2012 and had not previously been employed within the Quinn Group, wrote to the claimant to invite him to a disciplinary meeting on 29 March 2012.  He also invited the claimant to give Mr McCooey consent to access emails on his behalf.  He asked for details to be sent to him of the relevant emails so that these could be accessed.

 

2.19   At the interview on 29 March Mr McCooey invited the claimant to take him through the events which had occurred.  The claimant’s reply was, “You have the full details in front of you.  I am not going to waste time going through it all again.  I have nothing to add that has not already been said.  If you want to ask further questions of me I will answer them”.  Mr McCooey’s evidence was that he saw the claimant’s approach at this meeting as being uncooperative and confrontational, which the claimant disputed.  Having had the minutes of the meeting opened to us, we can appreciate Mr McCooey’s perception.  In this meeting it was made clear that Colm McCormack had been in contact with Creagh regarding the proposed project following an introduction from the claimant.  The claimant maintained his position that he was trying to do the Company a favour in terms of getting more business and that there was no competition between Quinn Prestress concrete products and the Spantherm product which would have a primarily domestic application.  The claimant was challenged by Mr McCooey as to why he had not passed the lead onto Litepac directly and the claimant indicated that because he knew the business so well he did not think it was necessary to refer it elsewhere.  Mr McCooey then addressed what we believe is the crux of the matter when he said to the claimant, “With all the upheaval in the group and the involvement of two ex-senior managers from the group, did you not feel you should ask if it was ok to do this work?”  The claimant’s reply was, “Why would I?  What is the problem with dealing with a customer who happens to employ ex-employees of the group?”  Mr McCooey carried on to say, “Given the fact that management has changed and that there has been a period of difficulty and change.  Given some ex senior managers were involved would you think to clear it with the new management first?”  The claimant replied, “It is not the way I work.  I have always been allowed to work on my own initiative.  I have always performed my duties well and got over my performance related pay. Why would I change the way I have worked for years”.  The claimant also challenged whether he was subject to the exclusivity of service clause and indicated that as far as he was concerned, this meant having another business outside of his employment for the Quinn Group.  When he was challenged as to whether he was in breach of exclusivity of service by carrying out work for another business and for example by helping them with a brochure (as it happened for Spantherm), his reply was, “I helped put together information for getting the business from them.  My interpretation and the legal interpretation of this clause is that it needs to be your own business not just involvement in somebody else’s”.

 

2.20   Again the claimant challenged Mr McCooey that there was other information the investigation should have come up with and did not.  When he was asked what information that was, the claimant replied that it was very clear how the investigation was carried out and that he was not going to tell Mr McCooey what should have been found out in the investigation.  It was put to him again that he had been asked a number of times to bring forward information which the claimant said had been missed but that he had not done so.  He was invited again to do this and the claimant’s reply was, “I am not going to sit with someone looking over my shoulder to go through my emails like a criminal”. 

 

2.21   The same day Mr McCooey had interviewed Colm McCormack.  He made it clear to Mr McCormack that he was not being investigated.  He went on to discuss with Mr McCormack the contact he had with Dennis Doogan and confirmed that he had had no communication with the claimant in relation to the matters since October or November 2011 when he first asked about it.  When asked whether the claimant would have known that the Quinn Litepac product was uncompetitive, Mr McCormack said he did not know because the main contact on the matter had been between him and Dennis Doogan.  He also confirmed that Tony Lunney had arranged for Liam McCaffrey of Spantherm to come and look at the moulding system to see what they would need if Spantherm were setting up a small plant of their own.

 

2.22   Following these meetings, Mr McCooey wrote to the claimant on 30 March to advise his findings.  These were that the claimant had provided information to another business outside of the Quinn Group which acted in competition with the group companies, that he had failed to obtain permission for this work and that he had failed to seek any form of clarification from either HR or the management of Quinn Radiators as he should have done, particularly given the significant changes to senior management within both the Quinn Group as a whole and the Radiators Division.  As a result of this the claimant was advised that he was being dismissed with effect from 30 March 2012.  He was also advised of his right to appeal which the claimant chose to exercise, sending a detailed letter of appeal by email on 3 April 2012. 

 

2.23   The appeal was eventually heard on 8 May 2012 after an earlier date was unsuitable.  In the interim the claimant noted that Mr Whitwell, who was due to hear the appeal, had notified staff that the claimant had left the Company.  In an email to Mr Whitwell on 13 April he commented,

 

                    “Since you have notified all the staff that I have ‘left’ the Company, I am not sure how I can expect any other outcome from the appeal progress other than the decision that has already been taken.  However, I leave this with your good self to explain”.  

 

          At the appeal meeting Mr Whitwell gave the claimant the opportunity to put his case forward and advise the reasons for his appeal.  The claimant replied that he had put together the grounds of his appeal in writing and he was not going to waste Mr Whitwell’s time or his own going through it.  The claimant again indicated that he thought it was difficult to understand why certain things had not been looked into.  He stated that it was “amazing" that one of the main charges was that the Quinn Prestress concrete slabs would be in competition with the Spantherm products yet they targeted different markets.  The claimant again went through the sequence of telephone calls between Dennis Doogan, Liam McCaffrey and Litepac in February 2012.  It was noted that he was not bringing any new information to the appeal.  The claimant queried who had made the decision to suspend him and made a number of disparaging comments to Mr Whitwell. 

 

2.24   It was put to Mr Whitwell that if he had asked the claimant not to attend a meeting because he had a grievance against their boss, then Mr Whitwell was never going to reinstate the claimant.  Mr Whitwell’s reply was that he would have had no difficulty if this had been the appropriate action.  After the appeal was completed, the decision to dismiss the claimant was upheld.

 

2.25   Ms McStravick (who was the acting head of Human Resources at the time) decided subsequently to investigate the matter raised by the claimant in his second grievance in April 2012, including the allegation that Kevin Maguire (who had been employed as Technical Manager in the CIS) had been fully aware of all of the work done on the Creagh concrete project.  Mr Kevin Maguire confirmed that he had spoken to Dennis Doogan in relation to the matter and that he had done a number of calculations involving Litepac products and the “U values” for Litepac.  He confirmed that he had met with Dennis Doogan and the claimant in relation to the matter.  Kevin Maguire also sent a detailed email to Ms McStravick in relation to these matters, where he pointed out that he had in the past and continued to add a significant value to the product specification definition process by means of the technical advice he provided.  He added, “I regard all enquiries as potential sales opportunities and have never in the past had to seek a mandate to deal with any potential customers”.  Ms McStravick’s evidence was that she had come to the conclusion that Mr Kevin Maguire had done the work because he thought that it was going to be used by Creagh in their new product and after discussion with the Operations Director of the CIS side of the business, it was decided that there would be no further disciplinary action in relation to the matter.

 

2.26   The claimant started work with his new employers Nuspan Ltd on 1 May 2012.  The directors at Nuspan Flooring Ltd are Liam McCaffrey and Dennis Doogan who were setting up this new venture.  In his new employment, the claimant works in England, travelling to and from his job on a weekly basis from home in Co Fermanagh.  His salary is £50,000 per annum and he advised the tribunal that he had not received any payment in respect of his car nor was he a member of any Company pension scheme.  He did not receive any benefits while out of work.  The respondent suggested that the claimant had effectively set up a new job with Nuspan while his appeal was outstanding.  He was paid for his notice period and started his new employment while still in his notice period.  We did not have any evidence which pointed to the claimant having “set up” a new job with Nuspan before his dismissal.

 

 

THE RELEVANT LAW

 

3.       Unfair Dismissal

 

3.1     The relevant law in relation to unfair dismissal is to be found in Article 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the ERO 1996”).

 

          The most relevant articles in relation to this case are as follows:-

 

                    “Article 130   (1)      In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

 

                                                  (a)      the reason (or, if more than one, the principal reason) for the dismissal; and

 

                                                  (b)      that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                                        (2)      A reason falls within this paragraph if it:-

 

                                                  (a)      relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;

 

                                                  (b)      relates to the conduct of the employee;

 

                                                  (c)      is that the employee was redundant; or

 

                                                  (d)      is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision…

 

                                        (4)      Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the 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.

 

                    Article 130A  (1)      An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-

 

                                                  (a)      one of the procedures set out in Part I
of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

                                                  (b)      the procedure has not been completed; and

 

                                                  (c)      the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 

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

 

3.2     In relation to the matter of procedural fairness, it is important for an employer to show not only that they have followed the statutory disciplinary and dismissal procedures set out in the Employment (Northern Ireland) Order 2003, but they should in addition make sure that any procedures they themselves have put in place have been followed correctly.

 

3.3     Guidance as to the correct way to proceed in following disciplinary and grievance procedures is to be found in the Labour Relations Agency’s Code of Practice and Disciplinary and Grievance Procedures.  We quote the guidance in relation to disciplinary rules in paragraphs 59 and following of the Code of Practice which state as follows:-

 

                    “59.    Rules should be specific, clear and recorded in writing.  They also need to be readily available to employees, for instance on the notice board or, in larger organisations, in a staff handbook or on the intranet.  Management should take all reasonable steps to ensure that every employee knows and understands the rules, including those employees whose first language is not English or who have trouble reading.  This is often best covered as part of an induction process indicating the status of such rules.

 

                    60.     Employers should inform employees of the likely consequences of breaking disciplinary rules.  In particular they should list examples, but not exhaustive lists, of acts of gross misconduct that will warrant summary dismissal.

 

                    61.     Acts which constitute gross misconduct are those resulting in a serious breach of contractual terms and are best decided by organisations in the light of their own particular circumstances.  Such acts, whilst they occur only once, might be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract.”

 

3.4     The rest of the paragraph is a list of possible examples of misconduct.  The code also states in its Core principles of reasonable behaviour that disciplinary action should not be taken until the facts of the case have been established and that the action should be reasonable in the circumstances.  It also advises, “Never dismiss employees for a first disciplinary offence, unless it is a case of gross misconduct”.

            

3.5     In Rogan  v  South Eastern and Social Care Trust [2009] NICA47 the Northern Ireland Court of Appeal referred to its decision in Dobbin  v  Citybus Limited [2008] NICA42.  They restated the law as approved in Dobbin and quoted from the judgment of Mr Justice Browne-Wilkinson in Iceland Frozen Foods Ltd  v  Jones [1983] ICR117 where he stated the law as follows:-

 

                  “We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by S.57(3) of the Employment Protection (Consolidation) Act 1978 [the English equivalent of Article 130 of The Employment Rights (Northern Ireland) Order 1996] is as follows:-

 

                  (1)    the starting point should always be the words of S.57(3) themselves;

 

                  (2)    in applying the section an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

 

                  (3)    in judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

                  (4)    in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

                  (5)    the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair:  if the dismissal falls outside the band it is unfair”.

 

3.6     The Court of Appeal in Dobbin also quoted the remarks of Mr Justice Arnold in British Home Stores  v  Burchell [1980] ICLR303 where he stated that the three stage test to be adopted in each case would be as follows:-

 

“First of all there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all circumstances of the case.

 

It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.”

 

3.7     Reference was also made to the judgment of Lord Carswell in the case of Re D [2008] UKHL33 where he quoted the judgment of Lord Justice Richards in R(N)  v  Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605 where he said:-

 

“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 of the allegation is proved, the stronger must be the evidence before a Court will find the allegation proved on the balance of probabilities.” 

 

3.8     We were also referred to the decision of the Court of Appeal of England and Wales in the case of Sainsburys Supermarket Ltd  v  Hitt [2002] EWCA Civ 1588 where Mummery LJ clarified the decision given in Madden, where the Court of Appeal indicated that the issue of reasonableness should be considered as follows:-

 

“In the circumstances did the bank (the employer in that case) act reasonably or unreasonably in treating that reason [i.e. a conduct reason] as a sufficient reason for dismissing Mr Madden?

 

In holding that the dismissal of Mr Madden for that reason was unreasonable the employment tribunal erred in law.  It did not correctly apply the law as laid down in the authorities already discussed in the Post Office case. It impermissibly substituted itself as employer in place of the bank in assessing the quality and weight of the evidence before Mr Fielder, principally in the form of the investigating officer's report.  Instead, it should have asked whether, by the standards of the reasonable employer, the bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the bank's investigation into the matter was reasonable in the circumstances."

 

3.9     Lord Justice Mummery went on to state that what was required in assessing whether dismissal had been arrived at by a fair and reasonable process was:-

 

                    “to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been fairly and reasonably dismissed. Unfortunately, it appears that the law has not been made as clear as it should have been, since experienced members of the Employment Appeal Tribunal have in this case interpreted what was said in Madden, in relation to the objective standards of reasonableness and the range of reasonable responses test, as not applying to the question whether an investigation into the alleged or suspected misconduct was reasonable in the circumstances of the case…  The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) apply as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason …”

 

3.10   We were also referred to the decision of the Court of Appeal for England and Wales in Bowater  v  NW London Hospitals NHS [2011] EWCA 63 where Longmore LJ stated:-

 

                    “The employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable responses open to a reasonable employer.”

 

Dismissal for a first offence

 

3.11    Generally speaking the Labour Relations Agency Code of Practice makes it clear that employers should avoid dismissals for a first offence unless the act constitutes gross misconduct.  The advice in Harvey is that dismissals for a first offence may be justified in three rather different circumstances:  First, where the act of misconduct is so serious that dismissal is a reasonable sanction, i.e., a case of gross misconduct.  Secondly, where the disciplinary rules have made it clear that particular conduct will lead to dismissal and thirdly, where the employee has made it clear that he is not prepared to alter his attitudes so that a warning would not lead to any improvement.

 

3.12    Apart from the obvious examples of extreme behaviour such as fighting, drinking or theft, there is substantial case law on the issue of setting up in competition with an employer or working for or assisting a competitor.  While the case law indicates that merely seeking employment with a rival business is not in itself enough, an employee owning a rival business and already doing work for that business on Company premises may be fairly dismissed, (Golden Cross Hire Company Ltd  v  Lovell [1979] IRLR 267).  The Courts have also found that tendering for the business of the employer whilst still employed will constitute a breach of the duty of loyalty (see Adamson  v  B & L Cleaning Services Ltd [1995] IRLR 193).  The clarity of the relevant disciplinary rules, and the significance of having them properly communicated to staff has been noted by the Courts.  In W Brooks and Son  v  Skinner [1984] IRLR 379, the fact that the decision to dismiss due to a particular category of misconduct had not been communicated to the employee in question was held to be significant.  The Court noted however that there was much conduct which any employee would know would merit instant dismissal and it was unnecessary to give examples.  They also stated that there were instances of conduct particularly those which had been dealt with in other ways at other times by the employer which the employee may well consider would not merit summary dismissal.

 

Consistency of treatment

 

3.13    In this case the claimant has argued that he was unfairly treated in that other colleagues such as Mr Kieran Martin and Colm McCormack were not disciplined in any way for their involvement in the contact with Creagh Concrete.  Kevin Maguire was not disciplined either.  The relevant case law indicates that while it is important to consider consistent behaviour, it may not always be decisive. 

 

3.14    In Post Office  v  Fennell it was noted that the expression “equity” as used in Article 130 of the Employment Rights (Northern Ireland) Order 1996 includes the concept that employees who misbehave in much the same way should have meted out to them much the same punishment.  This refers to inconsistent treatment meted out to comparable employees in the past.

 

3.15   However, as the EAT recognised in Eagle Star Insurance Company Ltd  v  Hayward [1981] ICR860, the same principle applies to inconsistent future conduct. 

 

3.16    However, Harvey points that although employers should consider how previous similar situations have been dealt with, the allegedly similar situations must be truly similar - see Procter  v  British Gypsum Ltd [1992] IRLR 7.  This may set significant limitations on the circumstances in which alleged inequitable or disparate treatment can render an otherwise fair dismissal unfair.  Secondly, an employer cannot be considered to have treated other employees differently if he is not aware of their conduct.  Third, if an employer consciously distinguishes between two cases, the dismissal can be challenged only if there was no rational basis for the distinction made.  However, if there is inconsistency then according to the decision of the EAT in Kane  v  Leeds Western Health Authority [1990] IRLR 168 then it is no answer for the employer to say that this was because different managers dealt with different issues.  Finally, even if there is clear inconsistency, this is a factor which may have to give way to flexibility. 

 

3.17    In United Distillers  v  Conlin [1992] IRLR 503 the Scottish Employment Appeals Tribunal appear to have reasoned that if an employer has been unduly lenient in the past, he will nevertheless be able to dismiss fairly in future notwithstanding the inconsistent treatment.

 

Contributory fault

 

3.18    The Employment Rights (Northern Ireland) Order 1996 provides at Article 157(6) that if the tribunal finds the employee has by any act caused or contributed to his dismissal, it shall reduce the amount of the award as it considers it just and equitable to do so.  In considering this matter it is important to recognise that the employee’s conduct must be examined in order to determine the extent to which it has caused or contributed to the dismissal and not to its unfairness.

 

3.19    If the dismissal is unfair merely because of a procedural defect for which the employee cannot be held responsible, his conduct can still be taken into account when assessing the compensation to which he is entitled.  The contributory fault must be conduct which is “culpable or blameworthy” and not simply some matter of personality or disposition or unhelpfulness on the part of the employee in dealing with the disciplinary process in that he or she has become involved.  (Bell  v  The Governing Body of Grampian Primary School [2007] All ER(D)148).  In considering contribution, the burden as a matter of law is not always on the employer to go by direct evidence from the dismissing officer or the dismissing panel as to what specific factors were in their mind at the date of dismissal.

 

3.20    If an employee engages in culpable conduct during the disciplinary process, for example by being dishonest or casting ill-founded aspersions of dishonesty on the employer, that conduct can be taken into account when considering any reduction for contributory fault (see Harvey at para 2729). 

 

3.21    As regards the level of deductions for contributory conduct, in Ingram  v  Bristol Street Parts [2007] All ER(D)345, the EAT rejected the argument that it was not possible for there to be a 100% contribution when an employer was at fault.  While noting that whenever there is a finding of unfair dismissal it must follow that the employer has not acted appropriately, the employee’s blameworthy conduct must be considered to determine the extent to which it has caused or contributed to the dismissal, not to the unfairness of the dismissal.  Where procedural failings by the employer are relevant to the dismissal itself, then a finding of 100% contributory fault is unjustified.  However, in Ingram the EAT upheld the tribunal’s findings that there would be no compensatory loss by reason of the 100% contribution.  In contrast in Gibson  v  British Transport Docks Board [1982] IRLR228 the Employment Appeal Tribunal refused to accept a reduction of 100% and reduced it to 90%, holding that the former could not be justified since the employee’s conduct was not the sole cause of the dismissal. 

 

 

4.       REASONS AND DECISION

 

4.1     The finding of the tribunal is that the claimant was unfairly dismissed by the respondent, but the claimant has made a substantial contribution towards the dismissal.

 

4.2     In considering the questions set out at the start of this Decision we take the questions in turn.  We turn first of all to Question 1:-

 

          (1)      Did the dismissal of the claimant by the respondent on 30 March 2012 follow the statutory dismissal and disciplinary procedures?

 

                    It is our finding that the process followed by the respondent followed the minimum requirements of the statutory disciplinary and dismissal procedures and there is therefore no issue in relation to that matter.

 

4.3     (2)      Did the respondent follow its own procedures correctly in dismissing the claimant?

 

          The respondent breached its own procedures in two significant ways:-

 

          First of all, in suspending the claimant without any previous meeting, the respondent failed to afford the claimant the opportunity of clarifying the position before he was suspended.  The respondent, although stating in the suspension letter to the claimant that suspension was “in no way a form of disciplinary action against you”, sent a message to other staff that in fact the matter was serious, by suspending the claimant from work and requiring to leave the premises, at short notice, escorted by Miss McStravick.  Given the senior position of the claimant in the company this undoubtedly raised cause concern within the business.

 

          Secondly, the respondent breached its own procedures in failing to allow the claimant’s brother to accompany him at the investigatory meeting and the disciplinary meeting.  In spite of the explanation by Ms Leddy to the claimant at the meeting that there was an error in the policy, the decision taken was clearly in contravention of what was stated in the policy.  The suggestion that someone’s brother could not be their friend for the purposes of an investigatory meeting is frankly derisory.  It seems to us that if the claimant was in the fortunate position of having his brother ready, willing and able to come to a meeting with him, he should have been able to have him accompany him at the investigatory meeting.  We believe that these two incidents unfortunately set the tone for the investigation and the processes which followed it.  While we do not believe that these breaches of procedure made a significant difference to the outcome of the investigation, we do think that they unfortunately raised concerns in the claimant’s mind as to the way the matter was being dealt with and the likely outcome.  We can appreciate that, given the fact that the claimant had already raised a grievance against Mr O’Brien which had been unsuccessful, and that he had then effectively been advised by Mr Whitwell to absent himself from a meeting when Mr O’Brien was to be present, there was at the very least a perception that the claimant was a disaffected employee, and this was clear from the claimant’s own demeanour during the hearing.  Mr Whitwell’s behaviour to the claimant in relation to the meeting, and the subsequent letter to the claimant (and only the claimant) notifying him of a potential redundancy undoubtedly caused the claimant more concern that his days as an employee of the Quinn Group were numbered.  This was further compounded by the failure of the company to follow proper procedures.

 

4.4     (4)      Was the dismissal of the claimant by the respondent substantively fair?  What was the reason for the respondent’s dismissal of the claimant? 

 

4.5     We have considered carefully the steps that were taken by the employer in relation to this matter and we have come to the conclusion that the dismissal of the claimant by the respondent was not substantively fair on the basis of the information before Mr McCooey, the dismissing officer, at the time of dismissal.  We have considered carefully the case law and we are mindful that we must not substitute our own opinion for that of the employer.  However, we have reviewed the investigation carried out by the employer and we do not believe that the investigation carried out was a proper investigation from two main points of view.

 

4.6     First of all, Mr Buchanan who carried out the investigation and Mr McCooey who actually dismissed the claimant were relative newcomers to the Quinn Group.  Mr Whitwell, who heard the appeal and who was in a more senior position to the claimant, was also a relative newcomer to the business.  Each of the individuals they interviewed as part of the investigation (the claimant, Kieran Martin and Colm McCormack) gave the same version of events  -  namely that they were trying to work with Creagh Concrete by providing technical drawings to see if they could generate new business for Quinn Litepac, which would supply a product to Spantherm, a subsidiary of Creagh Concrete Ltd.  Both Mr Martin and Mr McCormack confirmed that the product proposed by Spantherm, which was a combined concrete/insulation slab, was not in direct competition with the Quinn Prestress product.  Indeed on the information which was produced to us, it seems that while the claimant had initial contact with Dennis Doogan in relation to the matter, gave instructions to Kieran Martin to prepare the initial drawings and had some conversations with Mr McCormack in relation to the matter in the Autumn of 2011, there was then further direct contact between Mr McCormack and Mr Doogan, and the claimant was not directly involved in those discussions.  The respondent has not provided any clear explanation as to why, on foot of this investigation they believe that the claimant was at fault while Mr Martin and in particular Mr McCormack (who was at a similar level of seniority to the claimant) were not at fault.

 

4.7     Secondly, the claimant emphasised that within the Quinn Group there was a culture of people from different divisions helping each other out to try to generate business.  This was confirmed by Kieran Martin in the course of his interview in that he said he had done some drawings for other divisions with authorisation from his manager.  Mr McCaffrey, in his evidence, emphasised the importance of trying to generate business for the group as a whole and that the group had very much the policy of assisting businesses at all levels with design and technical expertise, to maintain and support customer relations.  Put succinctly, his preference was that their cement product competitors should make their products with Quinn Cement, rather than not make the products at all, or make them with cement from a competitor.  The claimant also pointed out both to Mr Buchanan and to Mr McCooey that Tony Lunney, the General Manager of CIS had facilitated a tour of Quinn premises by representatives of Spantherm prior to Christmas 2011.  It appeared that the claimant may have got the exact purpose of the meeting wrong, in that Colm McCormack indicated that this meeting was to allow representatives of Spantherm to see what would be required if they decided to set up a moulding plant, because the Quinn products had already been established as being too expensive.  However, it does indicate that Mr Lunney was aware of the possible project and indeed facilitated the visit.  The claimant had specifically asked Mr Buchanan to speak to Tony Lunney in relation to the matter, but neither Mr Buchanan nor Mr McCooey decided to do this.  In our view it would have been reasonable and proper for them to speak to Mr Lunney as he may well have been able to establish the exact position in relation to the meetings and contacts and clarify whether or not, in his view, there was anything improper in relation to the contacts between the claimant and Spantherm.

 

4.8     It was suggested to the claimant during his disciplinary meeting with Mr McCooey that, given the changes within the business in the previous few months he should have sought advice from a more senior manager before pursuing the contact with Mr Doogan.  The claimant’s reply was that he was working as he had always worked.  References were made to an e-mail sent to all staff in April 2011 after the Quinn Group was taken over by Anglo Irish Bank, stressing that it was very much “business as usual”.  It was perhaps disingenuous on the part of the claimant to emphasise this point, given that he knew very well that there were major changes within the company, not all of which he agreed with.  In our view, it would have been sensible for the claimant to seek advice from a more senior manager before pursuing the contact with Dennis Doogan, particularly that given the fact that Mr Doogan by this stage was a former employee of the Quinn Group.  There is nothing in the evidence before us to suggest that Mr Doogan behaved in any way improperly, nor that he had left the Quinn Group under any sort of “cloud”.  However, given the radical changes within the business, it would appear to us sensible on the part of the claimant to have behaved rather more circumspectly than he actually did.  That said, both Mr Buchanan and Mr McCooey appear to have completely ignored the evidence given to them by Kieran Martin and Colm McCormack about the background to this matter, the fact that they did not view what they had done as being in any way in competition with Group products, and the claimant’s own evidence in relation to the previous culture of the company they failed to take this any further by checking the position with Tony Lunney which in our view might have clarified the position quite considerably. We do not think that the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  It was pointed out that Mr Lunney’s office was a few doors up the corridor from Mr Buchanan’s, and in those circumstances we think it would have been entirely appropriate for Mr Buchanan to speak to Mr Lunney in relation to the matter.  The evidence before us, taken objectively, does not demonstrate that there was a genuine belief on the part of the employer that there was gross misconduct on the part of the claimant.  The investigation was defective in that it failed to take account of the previous culture or check out the position with Tony Lunney.  We do not therefore believe that the respondent has shown that they had a reasonable belief that the claimant had actually breached exclusivity of service or that they had reasonable grounds on which to sustain that belief, due to the evidence given by the other individuals involved in the investigation.    

 

4.9     In reaching this conclusion, we have taken account of the judgment of Lord Carswell in Re D cited above:  the more serious the allegation or the more serious the consequences of the allegation, the stronger must be the evidence before Court will find the allegation proved on the balance of probabilities.  In this situation, the employer was treating the allegation as gross misconduct and therefore the claimant’s job was at risk.  In our view they needed to be very sure of their ground before they made such a judgment.

 

4.10    We also note that neither Mr Martin nor Mr McCormack was disciplined in any way in relation to these matters and this raises real concerns about consistency of treatment, especially as regards Colm McCormack, who was at a similar level of seniority as the claimant.

 

4.11    (5)      Did the claimant contribute to his dismissal?  If it is found that the claimant contributed towards this dismissal should any award in his favour be reduced, and if so by what percentage?

 

4.12    In our view the claimant did contribute to his dismissal and to a substantial extent.  Before the issue of alleged misconduct was raised, he had already had an interview with Mr O’Brien, the new Chief Executive Officer, where he expressed his views trenchantly, and this clearly marked him out as someone who did not agree with the new management.  He advised that he had raised a grievance, partly in relation to that interview and partly in relation to other matters.  That grievance was not upheld and the claimant did not appeal the outcome.  

 

4.13    It would appear however that the claimant’s poor relationship with Mr O’Brien was known at a senior level in the company, given that in early 2012 Mr Whitwell took the claimant aside to discuss with him whether or not it was appropriate for him to attend a meeting in Newport at which Mr O’Brien would be present.  This seems to us a rather extraordinary course of action on Mr Whitwell’s part, given that he knew the claimant had come to the meeting prepared to make a presentation, and he allowed him to travel to Wales before making the suggestion that he should not actually attend the meeting.  It also seems to us extraordinary that a confidential process such as a grievance would have been known to Mr Whitwell who was a relative newcomer to the company.  In light of this we can appreciate that there was a certain amount of disquiet on the part of the claimant, but we do not think that the claimant assisted his situation in the way that he had dealt first of all with the issues surrounding Mr O’Brien and then subsequently with the disciplinary process.  The notes of the investigatory meeting, the disciplinary meeting and the appeal all show an uncooperative attitude on the part of the claimant.  Mr McCooey described it as being “confrontational” and that certainly emerges from the paperwork before us and from the claimant’s demeanour at tribunal.  He appears to have taken the attitude that he was not obliged to produce any information in his own defence and he simply pointed on the number of occasions to matters which he said should have been uncovered in the investigation, without specifying exactly what those were or assisting either Mr Buchanan or Mr McCooey in any way.  The claimant was given the opportunity to review his e-mails to see if information could be produced which would assist his case.  He flatly refused to do this unless the suspension was lifted which we consider short-sighted on his part.  While, as stated above, we can see that he had been treated poorly by the respondent in the way that his suspension was carried out, his truculent manner both in correspondence and at the various meetings did nothing to help his case.  We have considered whether the employer simply felt that a warning in this case would not have led to any change of attitude on the claimant’s part.  It does not appear to us however that this was even considered or, and it certainly does not emerge from any discussions which took place at investigatory, disciplinary or appeal stage.  It is however our finding that the claimant contributed considerably to his dismissal by his attitude and we believe that the award given to him should be reduced by 60% for contributory fault.

 

4.14    We assessed the compensation due to the claimant as follows:-

 

	Basic Award
	The claimant was born on 1 December 1964 and so was aged 47 at the date of his dismissal.  His pay was considerably over the statutory maximum pay which was £430.00 per week at the date of his dismissal.
	He had 24 years service and therefore his basic award is subject to a maximum of 20 years service.
	The basic award is calculated as follows:-
	5  x  1½  x  £430.00  =  £3,225.00
	15  x  1  x  £430.00  =  £6,450.00
	Total basic award:	£9,675.00
	Compensatory Award
	Loss from date of dismissal to starting new job (30 March 2012 to 1 May 2012), ie, one month’s salary (net) £3,200.00.	£3,200.00
	Ongoing loss from date of starting new job to date of the hearing (1 May 2012 to 10 May 2013), ie, 10½ months.  The claimant did not receive any social security benefits.
	The monthly loss to the claimant is £416.66 gross.  We were not given a figure for the net amount and we have assessed this as being 49% of £416.66, given that this amount will be subject to tax at 40% and 11% National Insurance contributions.  We find therefore that the claimant’s ongoing net loss was £207.20 per month.  We have decided that it would be appropriate to award 12 months’ future loss and we therefore calculate this element of the compensatory award as follows:-   22½ months @ £207.20 per month  =  £4,662.00	£4,662.00
	Loss of Bonus
	It was the claimant’s evidence that he usually achieved a bonus which was between 25 and 28% of his salary.  We think therefore it would be appropriate to award loss of bonus for one year at the rate of 27% of his then salary of £55,000.00.  We calculate his annual bonus on this basis would have been £14,850.00, and we have reduced this to take account of tax to the sum of £7,277.00.	£7,277.00
	Loss of Statutory Rights
	We award the sum of £500.00 for the loss of statutory rights.	£500.00
	Accordingly, we assess the total compensatory award as £15,639.00 and applying a reduction of 60%, the net amount of the compensatory award is £6,255.60.	£6,255.60

 

4.15    Total Award (Basic and Compensatory Award)  =  £15,930.60.

 

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

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:     20 March 2013 and 8-10 May 2013, Belfast.

 

Date decision recorded in register and issued to parties: