Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   2036/12

 

 

 

CLAIMANT:                      Andreas Mihail

 

 

RESPONDENT:                Lloyds Banking Group

 

 

 

DECISION

The unanimous decision of the tribunal is that all claims are dismissed.

 

Constitution of Tribunal:

Vice President:                Mr N Kelly

Members:                        Mr A Kerr

                                        Mrs S Butcher

 

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Pinsent Masons Belfast LLP, Solicitors.

 

Background

 

1.               The claimant was employed at the respondent’s call centre from 2001 until he was dismissed by the respondent on 15 October 2012.  Throughout the claimant’s employment apart from a period of temporary acting-up, he was employed at a basic grade dealing with customers’ telephone calls. 

 

2.               The claimant had previously been the managing director of his own fashion company for some 23 years.

 

3.               Following disciplinary procedures in 2012, the respondent dismissed the claimant summarily for gross misconduct on two grounds; firstly, breaches of the Customer Verification Procedure (‘CVP’) and, secondly, his refusal to promote internet banking services in his telephone contacts with customers. 

 

4.               The claimant lodged a claim of unfair dismissal, disability discrimination and breach of contract. 

 

5.               These claims were case-managed and the agreed issues for determination by this tribunal were specified in a Case Management Discussion on 19 December 2012. They were listed in the written record of that CMD which was sent to both the claimant and to the respondent’s representatives.  That record defined the issues as:-

 

                    “Legal Issues :

 

          1.       Is the claimant disabled?

 

1.1           Whether the claimant is disabled within the meaning of Section 1 of the Disability Discrimination Act 1995 (‘the DDA’) and, in particular:-

 

1.1.1     Does the claimant have a physical or mental impairment?

 

1.1.2     Does that impairment have an adverse effect on the claimant’s ability to carry out normal day-to-day activities?

 

1.1.3     Is that effect substantial?

 

1.1.4     Is that effect long-term?

 

2.       Disability-related discrimination

 

2.1           Has the claimant been discriminated against contrary to Section 3A(1) of the DDA by the respondent allegedly:

 

                    2.1.1   Neglecting to act on doctor’s reports.

 

2.1.2     Wilfully adding stress on the claimant.

 

2.1.3     Being moved by Conor McLaughlin contrary to the claimant’s written dissatisfaction.

 

2.1.4     Not dealing with his grievance.

 

2.1.5     Taking disciplinary action against him.

 

2.1.6     Dismissing him.

 

2.2           Can the respondent rely on any justification under Section 3A(1)(b) of the DDA?

 

3.       Reasonable adjustments

 

3.1     Whether the respondent failed to comply with a duty to make reasonable adjustments and in particular:

 

3.1.1   Whether the respondent applied a provision, criterion or practice and, if so, whether it put the claimant at a substantial disadvantage in comparison with persons who are not disabled contrary to Section 4A of the DDA.

 

3.1.2     The provision, criterion or practice relied on is the respondent’s policy that the claimant promote internet banking within this role (‘the PCP’).

 

3.1.3     Did this PCP place the claimant at a particular disadvantage in comparison with other persons who are not disabled?

 

3.1.4     Was this disadvantage substantial?

 

3.1.5     Who is the relevant comparator?

 

3.1.6     What adjustments were reasonable, in all the circumstances of the case, for the respondent to have made an order to prevent the provision, criterion or practice having that effect?

 

3.1.7     Did the respondent take reasonable steps to prevent the PCP from having that effect?

 

4.       Victimisation

 

4.1     Whether the claimant has suffered victimisation contrary to Section 55 of the DDA and in particular:-

 

4.1.1   In what way does the claimant allege that the respondent treated him less favourably than a person without a disability?

 

4.1.2   If there was less favourable treatment, was this for a reason set out in Section 55(2) of the DDA?

 

5.       Harassment

 

5.1     Whether the claimant has been subjected to harassment relating to disability contrary to Section 3B of the DDA and, in particular, whether having regard to all the circumstances it is reasonable for the conduct to have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

 

6.       Comparators

 

6.1     Considering the provisions of the DDA and a decision in London Borough of Lewisham  v  Malcolm [2008] UKHL 43, who does the claimant allege is a relevant comparator in each allegation of disability discrimination?

 

7.       Defence

 

7.1     Can the respondent rely on the statutory defence as set out in Section 58 of the DDA?

 

8.       Unfair dismissal

 

8.1     Did the respondent unfairly dismiss the claimant contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the ERO’).

 

8.2     Was the dismissal for a fair reason under Article 130 of the ERO?

 

8.3     Did the respondent follow a fair dismissal procedure in accordance with Article 130A of the ERO?

 

8.4     If it is found that the respondent failed to follow the statutory procedure can it be shown that the claimant would have been dismissed if the statutory procedure had been followed in accordance with Article 130A(2) of the ERO?

 

8.5     Did the respondent act within the band of reasonable responses in       dismissing the claimant?

 

9.               Breach of contract

 

Has the respondent breached the claimant’s contract of employment by moving him from working with Glen Stephenson to a new line manager?

 

10.     Remedy

 

10.1    In the event that liability is established what is the appropriate remedy; including any:-

 

                    10.1.1           basic award;

 

10.1.2                      compensatory award; or

 

10.1.3                      injury to feelings.

 

10.2      In the event that liability is established would the claimant’s basic award be reduced in accordance with Article 156(2) of the ERO?

 

10.3      In the event that liability for unfair dismissal is established should the claimant’s compensatory award be reduce in accordance with Article 157(6) of the ERO?

 

10.4      Did the claimant fail to comply with the statutory procedures and/or the LRA Code of Practice in bringing his claim before he appealed the decision to dismiss him and should any compensation, if awarded, be reduced by up to 50%?

 

10.5      Has the claimant sought to mitigate his loss and, if not, should any remedy be adjusted on that basis?”

 

The hearing

 

6.       The claimant and seven witnesses for the respondent had exchanged witness statements in advance.  Those witness statements were to take the place of oral evidence-in-chief and each witness was to move immediately to                 cross-examination and re-examination on the basis of the witness statements as exchanged.  It had been made clear during the case-management process and had been confirmed in writing in the case-management record dated 28 December 2012 that witness statements had to be exchanged in accordance with a specified timetable and that:-

 

“A witness statement must be a complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case that the witness wishes to give to the tribunal.  A witness will not be permitted to add to his statement without the consent of the tribunal.  Consent will only be given where there is good reason for doing so.”

 

7.       Despite the clear identification of and the agreement of the issues in the                          case-management process and despite the clear instructions given to parties, the attitude of the claimant to this litigation caused significant difficulties in the course of the hearing.  Despite his health difficulties, the claimant was clearly intelligent and articulate.  He was fully capable of understanding specific instructions.  There is no evidence of any inability to understand such instructions or the procedure as directed by the tribunal.  Having observed the claimant, the tribunal does not accept the claimant misunderstood those instructions or that the claimant misunderstood the issues to be determined by the tribunal or indeed that he had misunderstood the purpose of this litigation. 

 

8.       The hearing commenced with a reading day on 3 June 2013 (Monday) and moved to two days of evidence on the Tuesday and Wednesday with submissions on the Thursday.  On 4 June 2013 (Tuesday) the claimant produced a letter from his GP.  That letter was dated 3 June 2013.  The GP’s letter was put forward as evidence on behalf of the claimant in respect of the first specified issue; ie whether or not the claimant had been disabled?  The claimant’s attention was drawn to the specific directions of the tribunal and to the earlier identification and agreement of the issues.  The claimant was advised that it was not satisfactory to attempt to introduce unsworn evidence at the last minute, which could not be cross-examined and which could not be rebutted by the respondent.  This was particularly the case where the proffered evidence related to the central issue in the case; had the claimant been ‘disabled’ at the relevant times?

 

9.       The claimant stated that he had not understood the requirements that had been clearly placed upon him.  The tribunal does not accept that that could be the case.  The claimant further stated that he had not realised that the first issue required evidence on his part in a form of a witness, who would be available to swear that evidence and then to be cross-examined, until he had spoken to a ‘barrister’.  He stated that following speaking to that ‘barrister’, he knew that the Occupational Health Report, which shall be referred to later in this decision, did not determine the matter for the purposes of the first issue and that he was required to produce evidence.  Despite having received (however belatedly) advice which he could and should have looked for much earlier, he produced the GP’s letter, as indicated, on the first day of the hearing.  On 5 June 2013 (Wednesday), he stated that he wanted the tribunal to allow the introduction of oral evidence from the GP who, he stated, would be available to give evidence on his day off which was, according to the claimant, on the Friday afternoon.  No communication was received from the GP indicating his availability.  No opportunity was to be given to the respondent to consider that evidence in advance by way of a witness statement, or, realistically, to arrange its own medical evidence in rebuttal.

 

10.     The issue of whether or not the claimant had been disabled for the purposes of the DDA was a central issue in this litigation from the commencement of that litigation.  It was clear from the respondent’s initial IT3 response that that was the position.  It remained the position throughout the case-management process and it was highlighted and identified as the first issue to be determined.  The claimant was further instructed orally and in writing that the witness statements had to cover the issues set out in the CMD record, including the first issue.  The purpose of the                   case-management procedure was to avoid difficulties of this nature and to avoid the unnecessary reconvening of cases and the unnecessary disruption of cases.  The tribunal is firmly of the view that the claimant knew what was required of him and, for whatever reason, failed to secure the necessary evidence and failed to put himself in a position where he could comply with the tribunal’s directions.  If his application for a further witness had been acceded to, the respondent would not have been in a position to call rebuttal evidence and submissions would have been significantly delayed.  Given the claimant’s clear understanding of the obligations placed upon him and his equally clear disregard for those obligations, the tribunal concluded that it would not be appropriate to delay the determination of this matter by reconvening on the Friday to allow for the possible attendance of the claimant’s GP with the inevitable requirement for rebuttal evidence and the equally inevitable delay in final submissions. 

 

11.     Again despite the clear identification of the issues before this tribunal, the claimant in his written statement and in his cross-examination repeatedly tried to turn this litigation into a form of public inquiry into the banking industry at large and into the respondent’s activities in particular, without any focus or any regard for the actual issues to be determination by the tribunal.  For example, the claimant repeatedly raised an alleged incident some 10 years before his eventual dismissal in which he had not received a sales bonus to which he felt he was entitled.  He raised the fact that he was not of British origin and suggested racial discrimination; an allegation that appeared nowhere in the claim.  He queried the fact that he had been moved to a female manager but never appeared to articulate sex discrimination.  He repeated allegations against an individual who he frequently described as ‘a dysfunctional manager’.  This was not a manager who had any direct or relevant contact with the claimant.  He criticised the actions of CEOs of the respondent organisation.  He referred to what he called the ‘PPI fiasco that I advised them about 10 years ago’.  In short, it was extremely difficult to persuade the claimant to concentrate on the issues which were properly for determination by the tribunal. 

 

Relevant law

 

Unfair dismissal

 

12.     Tribunals must approach with particular care any claim that includes not just a claim of unfair dismissal but, in addition a claim of unlawful discrimination.  Further problems can occur where there may be an issue of contributory conduct. 

 

          In London Ambulance Service NHS Trust  v  Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-

 

“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts.  It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments.  As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims.  Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same.  Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

 

13.     The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47. 

 

14.     Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

                    “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 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 –

 

                                        (b)      relates to the conduct of the employee,

 

(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 reason 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.”

 

15.     The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

 

“(49)   The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR111.

 

(50)   In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

          “Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1)      the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another;

 

(5)      the function of an 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.”

                             

(51)    To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

“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 (usually, though not necessarily, dishonest conduct) 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, it 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 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.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

 

16.     In Harvey on Industrial Relations and Employment Law (Division 1 – 195) it provides that:-

 

“In a suitable case, the employer may rely upon breakdown in trust and confidence as the substantial reason justifying the dismissal.”

 

17.     Under Article 135 of the 1996 Order, an employee shall be regarded as unfairly dismissed if the reason or principal reason for the dismissal was the assertion of a statutory right.

 

Victimisation

 

18.     As the Court of Appeal stated in Rice  v  McEvoy [2011] NICA 9 when it remitted a claim of unlawful victimisation for complete re-hearing:-

 

“In order to establish that discrimination by way of victimisation has occurred –

 

(a)      circumstances relevant for the purposes of the provision of the Order must apply;

 

(b)      the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (‘the less favourable treatment issue’); and

 

(c)      he must have done so by reason of the fact that the person victimised has done one of the protected acts (‘the reason why issue’).”

 

19.     In Paragraph 33 of its decision, the Court stated:-

 

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious.  If on such consideration it appears that a protected act had a significant influence on the outcome, victimisation is established.  (See Lord Nicholls in Nagarajan  v  London Regional Transport [1999] IRLR 572 at 575, 576.)  The question is why did the alleged discriminator act as he did?  What consciously or unconsciously was his reason?  Unlike causation this is a subjective test.”

 

20.     The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation.  A claimant in a discrimination claim must prove facts upon which the tribunal could reasonably infer, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant (in this case unlawfully victimised the claimant).  In other words, the claimant must establish a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.

 

21.     Reasonable adjustments duty

 

          Section 4A of the Act provides:-

 

                              “(1)     Where –

 

(a)     any provision, criterion or practice applied by or on behalf of an  employer …

 

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

 

22.     Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.  The EAT in Tarbuck  v  Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.

 

23.     The Employment Appeal Tribunal in the case of Project Management Institute  v  Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

 

                    “The paragraph in the DRC’s Code is correct.  The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some apparently reasonable adjustment which could be made.  That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift.  It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”

 

24.     The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions.  Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial. 

 

Burden of proof

 

25.     The statutory changes, introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the I Court of Appeal in the case of Igen  v  Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision.  The Northern Ireland Court of Appeal in McDonagh and Others  v  Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

 

                    “For the purposes of the present case the first question that the judge should have articulated was, ‘have the plaintiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’”

 

          Those guidelines were revisited and affirmed by the I Court of Appeal in the case of Madarassy  v  Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007.  At Paragraph 12 in that decision, the court stated:-

 

                    “I do not underestimate the significance of the burden of proof in discrimination cases.  There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases.  Arguments on the burden of proof surface in almost every case.  The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact.  Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts.  It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain.  The guidance in          Igen v Wong meets these criteria.  It does not need to be amended to make it work better.”

 

          The court went on to say at Paragraph 54 that:-

 

          “I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her.”

 

          At Paragraph 56, the court continued:-

 

          “The court in Igen  v  Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which the tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

 

          At Paragraph 57, the court continued:-

 

                    “‘Could conclude’ in Section 63a(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.”

 

26.     In accordance with the Small decision outlined above, this decision will deal separately with the claim of unfair dismissal and the other claims which, although they relate to the dismissal and the reason for the dismissal, raise different issues of law and are to be approached differently by the tribunal.

 

Relevant findings of fact

 

Disability discrimination, including victimisation and harassment

 

27.     The claimant has a wide range of disputes with the respondent.  As indicated above, this tribunal is not a free ranging public inquiry into the banking industry at large or into the activities, in particular, of Lloyds Banking Group.  The tribunal has to focus on the issues properly before it as part of its statutory jurisdiction.  Those issues were identified and agreed in the Case Management Discussion on 19 December 2012. 

 

28.     Those were, insofar as they related to the Disability Discrimination Act 1995, broadly:-

 

(i)       Whether the claimant was disabled at the relevant times for the purposes of the 1995 Act.

 

(ii)            If so, whether the respondent contravened the 1995 Act by             disability-related discrimination, failure to make reasonable adjustments, victimisation, or harassment in:

 

          (a)      neglecting to act on medical reports;

 

                  (b)      wilfully causing the claimant stress;

 

(c)            moving him from Conor McLaughlin’s team to Rachel Chambers’ team;

 

(d)            not dealing with his grievance;

 

(e)            taking disciplinary action on two charges, ie an alleged breach of CVP and failure to promote private internet sales; and

 

(f)              dismissing him.

 

29.     The first issue is therefore whether the claimant was at the relevant times, when the above incidents occurred, disabled for the purposes of the 1995 Act.  The onus of proof is on the claimant to establish that he was so disabled.  That was made plain to the claimant in the case-management process and particularly in the written record of the Case Management Discussion on 19 December 2012 where the question of disability was identified as the first issue.  The respondent had also made it plain in its initial response that the respondent was not conceding disability at that point and that attitude had not at any stage been changed by the respondent. 

 

30.     The tribunal has observed the claimant being cross-examined and has observed him cross-examining others.  It is also considered his detailed submission.  The claimant is clearly articulate and intelligent.  The tribunal does not accept that he was in any way confused about the need to establish disability for the purposes of the 1995 Act or in any way confused about the onus placed upon him to establish that disability.

 

31.     The claimant relied heavily on an Occupational Health Report obtained by the respondent which referred to an examination which had taken place on 20 October 2011.  It stated that at that stage he had a depressive illness; that he greatly disliked selling and that he had moral objections to selling.  It contained the phrase:-

 

“I believe this man’s medical condition would fall within the remit of the Disability Discrimination Act 1995/2005/Equality Act.”

 

32.     The Occupation Health Report suggested a change to the claimant’s role to a          non-sales job but did not directly relate that to a medical condition.  A ‘dislike’ or a ‘moral objection’ to sales is not a medical condition as such.  The medical report went on to say:-

 

“From a social point of view you currently keep reasonably active at home and there were no other significant factors out with work.”

 

That latter point tends to contradict the doctor’s opinion that the DDA was satisfied.  It seems that the concerns held by the doctor related to work activity and that they were centred on a selling activity. 

 

33.     In any event, the claimant accepted that he had been told by ‘a barrister’ that he could not rely on that doctor’s statement and that the question of disability was a matter for the tribunal to determine by reference to the relevant dates. 

 

34.     No other medical evidence was put forward by the claimant other than an unsworn letter from his GP dated 3 June 2013.  That unsworn letter, which was obviously not open to cross-examination, states that:-

 

“However due to problems of concentration he has had problems with his memory, his ability to concentrate and apply himself to whatever task was at hand.  This ability to assimilate and take on information can lead to poor judgment calls resulting in him putting himself at risk.”

 

35.     This unsworn letter does not refer to the relevant periods and does not deal with the issue of substantial adverse effect.  Even if it had been sworn, it would have had little significant impact on the determination of this issue. 

 

36.     The second issue is the alleged failure to act on medical reports.  The medical report to which the claimant refers in this allegation is the Occupational Health Report referred to immediately above in this decision.  It is clear that the claimant returned to work in November 2011 on what he described in a grievance appeal meeting as a ‘rehabilitation plan with no sales’.  It is not in dispute that sales targets were removed from the claimant.  His performance was not further assessed in that regard.  The claimant has pointed to various incidents in that period which have been recorded as sales.  However, the respondent’s witnesses made it plain, without rebuttal, that if a customer directly asked the claimant in the course of another telephone conversation, for a service, eg a loan, the claimant was entitled to proceed with that and apparently did so.  However, the important issue is that he was not required to do so as part of his role.  He was not assessed as part of his role by assessing sales activity to a stated level.  The claimant also states that he received general e-mails which were sent to all staff at his grade in relation to sales.  This does not seem, to the tribunal, to be a significant point.  The claimant could well have complained if he had been left out from such general correspondence and it was perfectly clear to all parties that he was not under any pressure to reach sales targets at any particular level or at all. 

 

37.     Part of the claimant’s complaint was that the respondent regarded his failure to promote internet banking as something which was not related to sales.  The claimant regarded it as something related to sales and therefore something he was entitled to refuse to promote.  The tribunal’s conclusion is that the claimant is entirely wrong in this regard.  A sale, in plain terms, is the exchange of a service for money or for some financial reward.  The bank did not charge for internet banking.  It is true that individuals at the claimant’s grade who set up internet banking received a minimal bonus of either 50p or £1.00 per registration involved.  However, that sort of bonus does not make an activity a ‘sale’.  Public servants in various areas receive bonuses.  That does not make their particular activity a sales activity.  No payment was required from the customer for the internet banking service.

 

38.     Even if the respondent had been obliged, under the 1995 Act, to make a reasonable adjustment in respect of the claimant by removing ‘sales’ and ‘sales targets’, and the tribunal is not convinced that it had to do so, the failure on the part of the claimant to promote internet banking in accordance with the respondent’s policy and the respondent’s reaction to that failure does not relate to a sales activity in the manner contended for by the claimant. 

 

39.     The next issue is the claimant’s move from his original team to Rachel Chambers’ team at the end of March 2012. 

 

40.     At that stage there were three teams in the call centre doing the late shift in relation to credit card queries.  This was going to be reduced to two teams and the membership of those two teams was to be balanced between good performers and bad performers, experienced staff and less experienced staff.  Mr Glen Stephenson who had been the claimant’s existing line manager and Ms Rachel Chambers were to be the two managers of the two new teams.  The claimant was moved to Ms Chambers’ team in April 2012.

 

41.     No evidence has been presented to the tribunal that this move was in any way related to an alleged disability.  The evidence of Glen Stephenson, which was not challenged by the claimant, was that the claimant was difficult to manage and that he took a lot of Mr Stephenson’s time and resources; at least one hour per day, on various issues that the claimant had with systems, business decisions, mistakes people allegedly made and comments he had made on an internal e-mail system in relation to the respondent, and in relation to the banking system generally.

 

42.     The claimant objected to this move to Ms Chambers’ team but he appeared to accept in evidence that he was consulted in a sense that he did have the opportunity to discuss the move with Glen Stephenson, Ms Chambers and with the decision-maker, Conor McLaughlin.  It is difficult to establish the objection the claimant had to this move.  It may be that he felt that his positive consent was required before a move could be made.  The tribunal is satisfied that that is not the case, contractually or as a general point.  Furthermore, the move from one team to the other involved the same hours and the same shift.  The two teams effectively mirrored each other by taking week about.  There was therefore a brief hiatus while the claimant switched from one team to another in accordance with his contract.  That hiatus was eased in that the claimant was not obliged to work on a Saturday during that handover period. 

 

43.     In any event the reduction from three teams to two teams was, on the respondent’s evidence, a straightforward re-organisation of resources and the selection of staff to be placed in either of the two teams was a balancing exercise carried out for legitimate reasons.  That has not been rebutted by any evidence from the claimant and it is accepted by the tribunal.  Again, there is no evidence whatsoever before the tribunal of any motive relating to the claimant’s alleged disability. 

 

44.     The next issue to be considered is the claimant’s allegation that the respondent, for disability-related reasons, failed to deal with his grievance.  That was a grievance dated 20 October 2011 from the claimant addressed to Mr Stephenson.  That grievance was somewhat diffuse in nature and stated:-

 

                    “The main issues to be investigated are as follows:

 

1.     unreasonable, bullying and dictatorial behaviour towards me;

 

2.     complete disregard to and abuse of my strengths and              micro-managing weaknesses with possible hidden agenda;

 

3.     your failure to informally address a disability issue and take corrective action using discriminatory behaviours for over three years and said behaviours going back even further to almost when I was in training.”

 

45.     The grievance was dated 20 October 2011.  There was brief delay which was caused by the claimant objecting to certain persons within the Belfast chain of management hearing his grievance because he felt they ‘lacked all integrity’.  The respondent apparently decided to look elsewhere.  It therefore took some time to arrange the hearing.  The hearing of the grievance took place approximately one month later on 21 November 2011 and was conducted by Mr Ciaran Moore.  The claimant attended with a representative.  This was a lengthy hearing comprising two hours’ submissions and evidence from the claimant.  The claimant sought to complain over a range of issues spanning a 10 year period and complained, in general, of his failure to be promoted over that period. 

 

46.     The decision on the grievance issued on 30 November 2011 rejecting the grievance.  That was followed by an almost immediate appeal from the claimant who wanted the appeal to be heard by the relevant managing director.  That again caused a delay in arranging a hearing manager who would satisfy the claimant in terms of perceived impartiality.  Eventually the hearing was to be heard by Mr Neal Mockford on 6 March 2012 and 3 April 2012.  The eventual decision Mr Mockford issued on 18 May 2012.  In the interval he appears to have interviewed 10 separate persons and examined various documentation.  The grievance was again rejected. 

 

47.     That was followed by another almost immediate appeal from the claimant on 30 May 2012 but there was no internal procedure for a further appeal.  It is clear to this tribunal that the grievance procedure had been fully and properly implemented.

 

48.     The next issues to be considered are the disciplinary process and the eventual decision to dismiss the claimant. 

 

49.     The disciplinary process commenced with an investigatory meeting on 27 July 2012 between the claimant and his then new line manager, Ms Chambers.  In the course of that meeting, the claimant confirmed what Ms Chambers previously understood to be the position, ie that he refused to promote internet banking when discussing matters with customers.  He described internet banking registrations as a ‘headache’.  He stated that the process was broken and that he would not ‘be a Del Boy who sells broken down cars’.  He stated that it was a ‘waste of time’ to promote registration for internet banking.  He confirmed what he had said at an earlier meeting with his line manager on 18 July, ie that he would not promote internet banking as that would be detrimental to his job.  He explained that as more customers registered for internet banking, it increased the chance there was of him losing his job.  When he was reminded that on 18 July he had been instructed to promote internet banking, he stated ‘I am not a salesman’. 

 

50.     The claimant was sent a letter dated 16 August 2012 inviting him to a disciplinary meeting on 10 September 2012 at 12.30 hours.  The timing of that meeting was to accommodate his absence on holiday.  The disciplinary meeting was to consider whether or not, in refusing to carry out the promotion of internet banking, the claimant had breached the requirements of his role. 

 

51.     In the interval, the respondent, in a review of telephone calls, had identified a particular telephone call which appeared to show a breach of the CVP.  The claimant received coaching in relation to that call and a further suspected breach was recorded on 18 September 2012.  That resulted in a further episode of coaching on 21 September 2012. 

 

52.     An investigation meeting was held on 21 September 2012 between the claimant and Ms Chambers.  In relation to the first call he stated that the reason why he had not followed the correct process was that it was ‘just a blank moment – no reason a lapse of concentration – that’s all I can say’.  Ms Chambers stated that there had been three CVP breaches since the start of July and the claimant refused to accept that.  The claimant stated that this was an example of him being picked upon.  Ms Chambers pointed out, and the tribunal has heard no evidence to the contrary, that the three separate calls were notified to her separately by three separate people.  The claimant was suspended from duty at the end of the investigatory meeting. 

 

53.     On 24 September 2012 the claimant was invited to another investigatory meeting with Lisa Dempsey.  Ms Dempsey explained that this was a further meeting to help to understand the reasons for the CVP breaches.  The claimant stated that he had said everything he needed to say on Friday (the previous investigatory meeting) and that he felt he had admitted to making a mistake.  He did not see a reason for a second meeting.  He stated that he did not want to go ahead with the meeting.  The claimant during the tribunal alleged that he had argued that he would not attend a further meeting until he had arranged representation.  That does not appear anywhere in the contemporaneous documentation and the tribunal does not accept that allegation. 

 

54.     The two separate disciplinary issues, ie the failure to promote internet banking and the alleged CVP breaches, were joined together for the purposes of disciplinary proceedings. 

 

55.     The claimant was sent a letter on 2 October 2012 inviting him to a disciplinary meeting on 9 October 2012. 

 

56.     The claimant was represented by a trade union representative.  The hearing was conducted by a Mr Patrick Crawford.  The claimant accepted that he had breached CVP on one call on 18 September 2012 but disputed the allegations in relation to the other two calls on 10 February 2012 and 15 August 2012.  The claimant was quite clear, both at the disciplinary hearing and in the course of the tribunal hearing, that he relied on his own experience and that asking him to follow the flowchart on what was described as ‘the security laminate’ was alleging that he was a child.  In relying on his experience he stated that he was 100% perfect 99% of the time and that he would continue to do so in future. 

 

57.     In relation to the alleged obligation to promote internet banking, he stated that he would not promote that service.  He regarded it as a sale and he alluded to a matter which he raised in the course of the tribunal hearing, ie a failure some 10 years ago to receive a bonus at the level he perceived to be correct. 

 

58.     The claimant was dismissed with effect from Monday 15 October 2012 on the ground of gross misconduct.

 

59.     The claimant appealed by letter dated 16 October 2012 in which he accused Mr Crawford of having an ‘agenda for achieving your aspirations to dismiss me’. 

 

60.     The appeal meeting was held on 12 November 2012 and chaired by Ms Lynn Dalgleish.  The claimant was again represented by a trade union representative.  The appeal was dismissed.

 

Decision

 

Was the claimant disabled at the relevant times?

 

61.     The conclusion of the tribunal is that the claimant has not discharged the onus of proof which has been placed upon him to show on the balance of probabilities that he was disabled at the relevant times for the purposes of the 1995 Act. 

 

62.     It is clear that the question of whether or not the claimant was disabled for the purposes of the 1995 Act has to be determined by reference to the dates of the alleged acts of discrimination – Cruickshank  v  VAW Motorcast Ltd [2002] IRLR 24.  Section 1(1) of the 1995 Act provides:-

 

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities.”

 

The relevant day-to-day activities are identified in the Schedule.  The relevant one for the purposes of the present case is:-

 

“Memory or ability to learn, concentrate or to understand and the perception of the risk of physical danger.”

 

63.     The fact that an individual may or may not have been disabled at one point in time does not necessarily mean that that individual is also disabled for the purposes of the 1995 Act at a different point in time.  The onus is on the claimant in every case to prove that, on the relevant dates, when the alleged acts of discrimination took place, he had in fact been disabled for the purposes of the 1995 Act.  In Ross  v  Precision Industrial Services Ltd and Du Pont [NICA 2005], Kerr LCJ stated:-

 

“The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant.”

 

64.     That onus of proof which is placed on the claimant is particularly important where the claimant seeks to rely on a presumed adverse effect which would take effect if medical measures were not in operation.  In Kapadia v London Borough of Lambeth [2000] IRLR 699, it was stated that:-

 

“It was not enough for a claimant to maintain that he or she would be badly affected if treatment were to stop – proof, preferably of an expert medical nature, is necessary.”

 

65.     As indicated above, the claimant was fully aware and fully capable of understanding that the question of disability was the first issue which had been identified and agreed at the Case Management Discussion on 19 December 2012.  Even if that had not occurred he would have been fully aware and equally capable of understanding that this issue was one which was not conceded by the respondent and that since the IT3  response had been lodged it was very much a live issue of contention.  Despite that, the claimant chose not to put forward, as clearly directed, specific evidence by way of a witness statement to support his assertions in relation to this first issue.  Furthermore, when he was challenged by the respondent’s legal representatives by way of a Notice for Discovery to provide copies of any medical reports upon which he intended to rely at the hearing and copies of his medical notes, his response was somewhat flippant.  In his reply of 30 January 2013 he stated that he:-

 

“Never had any reason to have had sight of his medical file let alone have reason to forward it to anyone.”

 

66.     Despite the attitude taken by the claimant to this important issue up until the first morning of the hearing, the claimant then sought to introduce by way of a letter from his GP proof, or what he believed to be proof, of his alleged disability.  Even though he had then, according to his own evidence, had had the benefit of professional legal advice, he had made no effort to seek the respondent’s agreement to any evidence by way of a letter and he had made no effort to call any witness to support any such letter.  On the second morning of the hearing he then asked for the hearing to be extended to the Friday of the week to allow for the attendance of the General Practitioner.  No communication was received from that General Practitioner and even if that request had been granted it would have been prejudicial and disruptive, not just to the General Practitioner concerned, but to the respondent and indeed to the tribunal.  The claimant had been given ample, and more than ample, notice of the issues to be determined and had resolutely refused to address the matter until a time and in a manner of his own choosing. 

 

67.     The Occupational Health Report is of little assistance to this tribunal.  It states that the claimant has suffered for a period of time from a depressive illness.  That much is not in doubt.  However, the degree of that illness from time to time and its effect from time to time on the specified day-to-day activities is very much open to doubt and very much requires proof.  Furthermore, the report was based on the examination on 20 October 2011 and its relevance is limited to that period in time.  As the claimant readily conceded, on the basis of his professional legal advice, the bland statement in the medical report that the doctor believed that the claimant, at that point in time, fell within the remit of the 1995 Act is not, in itself, proof of anything.  Furthermore, the reference to removing sales from the claimant’s role does not appear to be couched in terms of a recommended reasonable adjustment for the purposes of the Act.  The conclusion that there were no significant factors ‘outwith work’, together with a degree of scepticism evident in the way in which the medical report recounts the claimant’s ‘moral objections’ to sales, further detracts from the weight to be attached to this report. 

 

68.     In short, the claimant was an intelligent and articulate litigant who knew exactly what he had to prove and how he had to prove it.  He chose, for whatever reason, not to do so, and must be regarded as having failed to discharge the necessary onus of proof. 

 

Allegations of discrimination

 

69.     Even if the claimant had been able to establish that he had been disabled at any or all of the relevant times for the purposes of the 1995 Act, the unanimous decision of the tribunal is that he would have failed to establish any matters which would have justified an inference of unlawful discrimination of whatever type under the 1995 Act being drawn by this tribunal.  He would therefore have failed in his initial task of shifting the burden of proof to the respondent. 

 

70.     The claimant alleges that the respondent failed to act appropriately on the basis of medical reports.  The reference to ‘those medical reports’ can only mean the Occupational Health Report of 20 October 2011.  That report suggested that sales should be removed from the claimant’s role.  It was clear, having listened to the evidence of the respondent’s witnesses, and to that of the claimant, that sales targets were in fact were removed from the claimant’s role on his return to work in or about November 2011.  That in itself is startling because the claimant was not working for a charitable institution or for a social work department; he was working for a large commercial bank which provides and sells services to customers.  Claims of unlawful discrimination, and particularly claims of a failure to apply ‘reasonable adjustment’ must have some basis in reality.  Removing sales targets from an individual employed at a basic grade in a call centre was a significant step for the respondent to have taken.  

 

71.     It is all the more a remarkable step for the respondent to have taken when the reasons put forward by the claimant both then and later during his disciplinary proceedings and at the tribunal, for the removal of sales are taken into account.  Firstly, the claimant has stated that he has ‘moral objections to’ selling services.  It is clear that the claimant does not have any longstanding or deeply held objection to selling services as such.  On his evidence, a substantial earlier part of his career was involved in relation to the fashion industry.  Furthermore, in his initial period in the bank he was content to sell services.  His repeated evidence was that his problems at the bank and ‘the hidden agenda’ against the claimant started approximately 10 years ago when he did not receive a sales bonus at the level to which he thought he had been entitled.  The claimant’s evident and sustained bitterness at this decision was perfectly obvious to the tribunal as he described this incident.  It does not appear that any form of damascene conversion against the principles of usury or against the principles of capitalism had been triggered by this or by any other event.  This is not a court of morals.  However, even if it were relevant, and it is not, the tribunal is satisfied that the claimant did not have any ‘moral’ objections to sales.  Rather the claimant felt bitter at his treatment and clearly still feels extremely bitter at his treatment, some 10 years earlier, in relation to the non-payment of what he regarded as an appropriate level of bonus.  Secondly, the claimant also repeatedly stated that he regarded the system at the bank as ‘broken’.  In relation to internet banking, he refused to act as a ‘Del Boy’ selling or promoting such services.  That said, it is clearly not for junior employees in any organisation to determine the policy of that organisation or to refuse to act in accordance with that policy, particularly by refusing to involve themselves in sales or in the promotion of a service.  Finally, on several occasions, the claimant indicated that his motivation, at least in part, in refusing to become involved in internet banking promotion was a belief on his part that that would weaken his job security by enabling more and more customers to move to internet banking and away, presumably, from telephone-based services. 

 

72.     The steps taken by the respondent in response to the Occupational Health Report appear to this tribunal to have been remarkably generous and not in any sense a reasonable adjustment for the purposes of the 1995 Act.  That said, the steps were restricted to the removal of sales targets.  The claimant could, if he wished, sell services to individual customers who raised the matter with him.  There is some evidence on the figures that he did in fact do so.  The removal of sales targets did not in any way, in the opinion of this tribunal, affect his obligation to follow the respondent’s policy in relation to the promotion of internet banking services.

 

73.     The claimant is entirely wrong to assert that the promotion of internet banking services was in itself a ‘sale’ and therefore something which should have been removed from his duties by the respondent.  Firstly, any removal of ‘sales’ was in itself an act of inexplicable generosity on the part of the respondent and not in itself a reasonable adjustment for the purpose of the 1995 Act.  Secondly, even if it had been such a reasonable adjustment, the promotion of internet banking services was not in itself a ‘sale’.  The fact that bonuses were given at a fairly minimal level to employees at this level who arranged for customers to sign up to internet banking services does not make the matter a sale.  For a ‘sale’ to have occurred, the customer would have had to have been charged a fee for a service and there was no charge.  The evidence was that the internet banking service was entirely free and no evidence has been produced to the contrary. 

 

74.     Therefore in relation to the first issue under the general heading of ‘discrimination’, the tribunal finds that no evidence has been produced of any failure on the part of the respondent to deal properly with any medical report.  To the contrary, the respondent appears to have acted extremely generously towards the claimant in relation to the Occupational Health Report.

 

75.     The claimant also alleges that the respondent wilfully added stress to the claimant as a matter of disability discrimination.  Again, no evidence has been produced upon which this tribunal could reasonably draw any such inference.  The claimant appears to have been treated extremely tolerantly by the respondent throughout his service.  It is not in dispute that the claimant spent at least an hour per day in ventilating his ‘opinions’ on banking services and on the operations of the respondent in general, either to individuals or through the internal e-mail systems.  It is also clear that the respondent bent over backwards in removing sales targets from the claimant’s responsibilities.  All matters in relation to the claimant’s employment appear to have been conducted properly and without any suggestion that there had been any campaign against him.  As an example, the claimant was allowed four weeks’ leave on the death of his mother.  He was not pressed into returning early or at all. 

 

There is no evidence on which a reasonable inference of unlawful discrimination could be drawn.

 

76.     The claimant specifically focuses on his move from the team managed by Glen Stephenson to the team managed by Rachel Chambers.  That was a decision made by Mr Conor McLaughlin.  Again, the unrebutted evidence on the part of the respondent is that the three teams covering this particular shift were being reduced to two teams and that staff were balanced between the two teams on the basis of ability and experience.  The claimant was consulted and expressed his dissatisfaction.  However, there was no requirement, either contractually or generally, for individuals to give their positive approval before they could be moved from one team to another within the respondent’s organisation.  The claimant remained working the same hours on the same shift.  The duties of the team led by Rachel Chambers mirrored those of the team led by Glen Stephenson.  The only effect on the claimant was that he moved from one team to another and therefore from one week to another.  In relation to the handover period, the evidence of the respondent was that he was not required to work that particular weekend and there appears to be little or any effect on the actual working conditions of the claimant.

 

77.     It is therefore difficult to see the basis of the claimant’s complaint.  In any event, there is absolutely no evidence on which the tribunal could reasonably infer that the actions of the respondent, which appear to have been entirely reasonable, amounted to disability discrimination of any sort for the purposes of the 1995 Act.

 

78.     The claimant also alleges that the respondent did not deal with his grievance.  It is patently obvious from the evidence of the respondent and indeed from the evidence of the claimant that his grievance was dealt with by the respondent.  It may be that the claimant’s complaint is that it was not dealt with swiftly.  However, it is equally plain and again equally not rebutted by the claimant that it was the claimant’s insistence on approving the person who dealt with his grievance at the initial and at the appeal stage that led to the delay.  It was the claimant who asserted that he had no trust in the integrity of individuals in Belfast management and who caused any delays which occurred in the process.  It is not for the respondent or for any employer to cater for the whims of individuals who wish to avail themselves of internal procedures.  If the claimant insists that they do so, and if the respondent, for whatever reason, accedes to that request, the claimant cannot complain of any delays which are consequent upon that. 

 

79.     Again, there is absolutely nothing upon which a reasonable tribunal could properly draw an inference of unlawful discrimination in this respect for any purposes under the 1995 Act.

 

80.     Turning to the disciplinary issue, the claimant alleges that the decision to charge him was based in some way on his alleged disability.  No evidence has been produced to this effect.  While the claimant disputes two out of the three alleged breaches of the Customer Verification Process, it is equally clear that the claimant felt that he, with his experience, and with his ability, should not be required to follow that procedure to the extent that was required by the respondent.  It is equally clear that the respondent, for a variety of reasons set out above, decided that he would not promote internet banking to customers with whom he was speaking.  That was as requirement of the respondent organisation and the claimant worked for that organisation and was obliged to follow its policy. 

 

81.     The decision to instigate disciplinary proceedings seems to this tribunal to be entirely valid and entirely unrelated to any alleged disability.

 

82.     The claimant also focused on the second investigation meeting.  He alleged that this had been adjourned pending him obtaining representation.  There is no evidence that that was the case and, for the purposes of an investigation meeting, it is difficult to see the point the claimant was making.  It is absolutely clear on the face of the record and it is not disputed by the claimant, that he stated he had nothing further to add at that point and that he did not want the second investigation meeting to continue. 

 

83.     The decision to dismiss the claimant again seems to be entirely appropriate.  Repeated breaches of the Customer Verification Process together with a repeated disregard and a future disregard of those processes was significant enough in itself for an organisation in the respondent’s business.  The absolute refusal of the claimant, again for a variety of reasons, to promote internet banking was again significant in itself and could not reasonably have been tolerated by any employer in the respondent’s position. 

 

84.     No evidence has been produced from which this tribunal could properly infer that the disciplinary process or the dismissal decision was in any way related to the claimant’s alleged disability. 

 

Breach of contract

 

85.     No evidence has been produced of any alleged breach of contract of any sort, let alone the sort which resulted in financial detriment to the claimant.  That claim is dismissed.

 

Unfair dismissal – findings of fact and decision

 

86.     The jurisdiction of the tribunal in relation to unfair dismissal is different from the jurisdiction of the tribunal in relation to alleged discrimination.  As the Court of Appeal has set out in Rogan, it is not for the tribunal to substitute its own decision as to what was fair or unfair in relation to a dismissal.  The tribunal has to determine whether or not the procedure was fair and whether or not the decision to dismiss the claimant was within a band of reasonable responses. 

 

87.     The investigatory meeting between the claimant and his line manager on 21 September 2012 was thorough.  It dealt with the alleged CVP breaches in detail and invited the claimant’s explanation.  His response was to become irate and to state:-

 

“He couldn’t guarantee he wouldn’t lapse again.”

 

          His precautionary suspension at the end of that meeting appears appropriate.

 

The invitation to a disciplinary meeting on 9 October 2012 dealing with both the CVP breaches and the failure to promote internet sales was specific; the allegations could amount to gross misconduct.  The disciplinary meeting on 9 October 2012 appears to have been conducted properly and the claimant was represented by a trade union representative.  He was given a full opportunity to respond to these charges.  The respondent was entitled on the evidence to reach the conclusions that he did, ie that the charges were upheld.  Summary dismissal was within the band of reasonable responses open to a reasonable employer.

 

88.     The decision of the respondent was notified to the claimant by letter on 12 October 2012.  The claimant appealed on 16 October 2012.  The appeal meeting again appears to have been conducted properly.  The confirmation of the dismissal appears again to be within the band of reasonable responses and must be regarded as a fair dismissal.  The claim of unfair dismissal is not upheld.

 

89.     All claims are dismissed.

 

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing:         4 – 6 June 2013, Belfast

 

 

Date decision recorded in register and issued to parties: