Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1301/14

 

 

 

CLAIMANT:                      Melba Oliver

 

 

RESPONDENTS:              Paul and Carol Ludlow t/a Spar Loughgall Road

 

 

 

DECISION

The decision of the tribunal is that the claimant was not unfairly dismissed and there was no breach of the right to be accompanied.  The claimant’s claims are therefore dismissed.

 

 

Constitution of Tribunal:

Employment Judge:         Employment Judge Murray

Members:                        Mr B Heaney

                                        Ms M Mulligan

 

Appearances:

 

The claimant appeared in person and represented herself.

 

The respondents were present and represented themselves.

 

 

The Claim

 

1.       The claimant claimed unfair dismissal.  The respondents claimed that the dismissal was fair on the grounds of misconduct. 

 

Sources of Evidence

 

2.       The tribunal had witness statements and oral evidence from the claimant and her daughter on her own behalf.  For the respondents the tribunal had written and oral evidences from the two respondents with Mrs Cooke of Hendersons and Ms Crowe who was another of the respondents’ employees.  The tribunal also had regard to the documentation to which it was referred during the evidence.

The issues

 

3.       The issues at hearing before the tribunal were as follows:-

 

(1)            Was the dismissal of the claimant for misconduct or for some other reason?

 

(2)            Was any dismissal for conduct fair in all the circumstances?

 

(3)            Was the penalty of dismissal too harsh?

 

(4)      Was the claimant treated inconsistently when compared with other workers in a similar position?

 

The Law

 

4.       The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

 

5.       The task for the tribunal in a misconduct dismissal case is set out in the case of Dobbin v Citybus Ltd 2008 NICA 42 where the Court quoted as follows from the case of British Home Stores Ltd v Burchell 1980 ICR 303:

 

                    “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  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”.

 

6.       The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

 

7.       The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.  There was no breach of the SDP in this case.

 

Findings of fact and conclusions

 

General

 

8.       The claimant was employed at the respondents’ shop from 18 October 2008 to 16 May 2014 when she was summarily dismissed for gross misconduct.  At all times relevant to this case the claimant was a supervisor and, as such, would have been in charge on her own in the shop on occasion.

 

9.       Mr and Mrs Ludlow were owners of the business and employed two supervisors, namely the claimant and another individual, and a further 13 employees comprising both full-time and part-time staff.  The Ludlows had taken over the business in 2013 from Hendersons who ran the business for a few months following the departure of the previous owners.

 

10.     Loss of stock was an ongoing problem for the business and in order to deal with this Mr Ludlow would regularly view CCTV footage at random.

 

Investigation

 

11.     On 6 May 2014 Mr Ludlow was viewing CCTV footage for 5 May 2014.  He saw the claimant serve her daughter (who was also an employee of the company) and saw that the claimant only rang through some of the items which her daughter appeared to be buying. 

 

12.     Because of this discovery, Mr Ludlow viewed more footage focussing on the claimant specifically and found a further incident which occurred on 8 May 2014.  On that occasion the claimant’s daughter brought items to the till and her mother opened the till and closed it again without taking payment.  Mr Ludlow saw the footage of this incident on 9 May 2014.  He was later approached by Ms Crowe who had actually witnessed that incident and had been concerned about it but, by the time Ms Crowe reported it to Mr Ludlow, he already had viewed it.

           

13.     In view of what he had seen on the CCTV, Mr Ludlow decided that investigatory interviews should take place on Friday 9 May 2014 when both Mrs Oliver and her daughter were working.  Having spoken to both employees, Mr Ludlow believed that he had reasonable grounds to suspect gross misconduct had been committed and placed the claimant on suspension. 

Disciplinary

 

14.     The letter of invitation to the disciplinary meeting was dated 10 May 2014 and complied with the statutory dismissal procedures.  It also enclosed a copy of the Till/Cash Handling Procedure which had been signed by Mrs Oliver on 28 February 2013, together with a copy of the till receipts with signed notes from the investigatory interviews.

 

15.     Incident on 5 May 2014.  Of the five items brought to the till by Kirsty Oliver only two were scanned and paid for.  At the investigatory stage, the claimant had given two different explanations for this to the respondent:  firstly, that her daughter had already paid the items; and, secondly, that when the CCTV showed that this could not be the case, she had made a genuine mistake.  It was this change in her account which caused the respondents to doubt her veracity.

 

16.     The claimant accepts that three items were unpaid for and her point at tribunal was that she did not know there was a third item until this was brought up in the course of the disciplinary hearing after Mrs Ludlow had viewed the CCTV footage again.  The only difference the claimant alleged that this made to matters was that she was even more shocked about what she was being accused of.  We therefore find this point to be irrelevant to the case.

 

17.     Incident on 8 May 2014.   In this incident the claimant’s daughter brought items to her mother’s till but no cash was handed over.  Mrs Ludlow reasonably found the claimant to have given conflicting and inconsistent accounts of what had happened in that incident and Mrs Ludlow reasonably concluded that this cast doubt on her veracity.

 

18.     The disciplinary hearing took place on 15 May 2014 and was conducted by Mrs Ludlow with Mrs Cooke as note-taker.  A further meeting took place on 16 May 2014 when the outcome letter of that date was read to the claimant by Mrs Ludlow.  The outcome was that the claimant was summarily dismissed for gross misconduct. 

 

19.     Mrs Ludlow considered a Final Written Warning but rejected that because of the breach of trust involved and because she believed that the claimant had misled them during the investigation.

 

20.     The reason given in the dismissal letter was that the acts on 5 and 8 May 2014 were:  “...in breach of the company till procedures, serious negligence resulting in unacceptable loss to the company and a serious breach of confidence and trust between employee and employer”.  The letter further stated:  “Your actions and conduct were deemed to represent a fundamental breach of the trust and confidence invested in you by the company and trust and confidence necessary to continue your employment”.

 

Appeal

 

21.     The claimant appealed by letter of 17 May 2014.  The grounds of the appeal together with our conclusions can be summarised as follows.

 

22.     That she was not accompanied at the disciplinary hearing.  The claimant was told of her right to be accompanied by a trade union representative or another member of staff.  Her request to bring her sister to the hearing was therefore refused and the claimant chose not to be accompanied by a colleague as the majority of them were “too young”. 

 

23.     The LRA Guidance on Disciplinary and Grievance Procedures outlines the statutory right and also reflects good practice and provides guidance on the right to be accompanied.  It is clear that the right to be accompanied is the right to have a trade union official or a fellow worker and it was the claimant’s choice in this case not to ask a fellow worker to attend so there was no contravention of her statutory right. 

 

24.     There was therefore no breach of her right to be accompanied nor did it taint the process.  In addition, the claimant at the disciplinary and appeal hearings said that she was content to proceed without representation.  From the documents it is clear that the case against her was put to her, she had a full chance to put her side of the case and all the points she made were considered before a conclusion was reached.

 

25.     That she was not given a comfort break or offered anything to eat or drink.  There were three breaks during the hearing which amounted to 47 minutes.  The claimant agreed in evidence to us that she was offered by Mrs Ludlow as to whether or not she wanted a drink or a window open.  It is not therefore the case that no breaks were given nor drinks offered to the claimant.   

 

26.     That she was not aware of the disciplinary procedure.  The claimant had signed a contract in 2011 with a disciplinary procedure attached.  She had also signed policies in 2013 relating to till/cash handling and serving family members and confirmed that she understood that breach of those procedures could result in dismissal.  She confirmed at investigatory stage that she had not followed procedure.  She knew what she was being accused of and had a full chance to put forward her side of the case.  We find that the lack of a personal copy of the disciplinary procedure before the events in this case did not render unfair the decision to dismiss.

 

27.     That she was treated unfairly whilst another member of staff was not disciplined for a similar transgression.   The claimant stated that she was disciplined unfairly when others who had shortfalls on their till were not disciplined.  To support this she referred us to the daily reconciliation sheets for a selection of days.  Mr Ludlow’s explanation was that he always sought an explanation for discrepancies in the tills and on every occasion obtained a satisfactory explanation.  We accept Mr Ludlow’s evidence which was that the problem was not the fact that the claimant’s till had small shortfalls on the two occasions, rather, the problem was the nature of the two transactions, which took place close together, where the claimant served her daughter and failed to scan items or failed to take cash at the time of the transaction.  We accept his evidence that the claimant’s actions were therefore of a different character and warranted immediate disciplinary investigation.

 

28.     Prejudgement by Mr Ludlow.  The claimant said that she had given £10.00 to Mrs Ludlow at the disciplinary hearing to pay for the first shortfall.  At the appeal hearing, Mr Ludlow handed the claimant the change from her £10.00.  It was the claimant’s point that this meant that Mr Ludlow had prejudged the incident.  Mr Ludlow said that he was simply giving change from the sum after deducting the sum that the claimant had indicated.  We do not find that this shows prejudgment of any sort and indeed find it to be irrelevant to the case.

 

29.     The appeal hearing was conducted by Mr Ludlow after he took advice from the LRA on whether it was appropriate for him to do so as he had been involved at the investigatory stage.  Mr Ludlow also sought to have Mrs Cooke involved at the appeal stage but she was unavailable.  The note-taker therefore at that hearing was Mrs Ludlow.  This involvement of both Mr and Mrs Ludlow on appeal did not render the decision to uphold the dismissal unfair.

 

30.     At the appeal hearing the claimant proceeded to read from a lengthy statement which ultimately meant that the hearing was adjourned to 2 June 2014 to enable Mr Ludlow to study the statement. 

 

31.     In the appeal outcome letter, Mr Ludlow stated that he considered a role without supervisory duties for the claimant but decided that, as she was an experienced supervisor and long-standing employee, he could not accept that the incidents were careless mistakes.  He regarded them as a breach of trust and confidence, particularly in circumstances where the respondents did not feel that they could leave her in charge of the shop any more when they were not there.  We accept that these were reasonable conclusions and were therefore within the band of reasonable responses for a reasonable employer.

 

Procedure followed

 

32.     It was common case that the claimant had signed a contract in 2011 which attached a disciplinary procedure.  It was also agreed that she had signed the Till/Cash Handling Procedure on 20 February 2013 (when Hendersons briefly ran the business) together with a copy of the Staff Purchase Policy signed on the same date.

 

33.     Mr Ludlow stated that he applied the procedures attached to the contract which the claimant signed at 2011 together with the procedure entitled Till/Cash Handling Procedure signed in 2013.  The claimant understood and had no issue with the use of these procedures and policies.

 

34.     The 2011 contract was the contract in operation in relation to the disciplinary procedures. The two 2013 documents were incorporated into her contract in view of the declaration signed in each document by the claimant.   We find that the procedure to be followed was that attached to the 2011 contract together with the signed documents from February 2013 and it was those procedures and policies which were actually followed and applied in this case. 

 

35.     The category of gross misconduct engaged in this case was:  “Serious negligence which causes or might cause unacceptable loss, damage or injury” as set out in the Disciplinary procedure.  In the Till/Cash Handling Procedure document it states:

 

“Please be advised that any breach of these procedures will be classed as gross misconduct and may result in your dismissal from the company.”

 

The declarations signed by the claimant in each policy also make clear how transgressions would be regarded as very serious and could lead to dismissal.

Conclusions

 

36.     Our task is not to re-run the disciplinary investigation but rather to assess whether the actions of the employer as regards penalty and procedure were within the band of reasonable responses for a reasonable employer in all the circumstances. 

 

37.     It was a not defect in procedure for Mr Ludlow to carry out the investigation and the appeal in the circumstances of this case.  This is a small business with only two senior managers, one of whom had dealt with the disciplinary hearing and outcome.  We note the LRA Guidance on Disciplinary Procedures which states at Paragraph 48 in relation to appeals that:-

 

“A more senior manager not previously involved with the case should hear the appeal.  Where a person at the most senior management level has already been involved in the case and there is a manager of the same status who has not the appeal should be heard by the latter.  In the event that neither of these is possible and the same manager who took the disciplinary action unavoidably has to hear the appeal, that manager should act as impartially as possible.”

 

38.     This guidance reflects the guidance which Mr Ludlow said he received from the LRA.  As the LRA guidance envisages circumstances where the same person can hear the appeal when they heard the disciplinary hearing, we do not find it unfair for Mr Ludlow to have heard the appeal when he had already conducted the investigation and where his wife had heard the disciplinary hearing.

 

39.     The claimant sought to show that Mr Ludlow was in fact involved in the disciplinary hearing and that this was a flaw.  Mrs Ludlow candidly accepted that she and her husband had discussed the matter when he had asked her opinion on the acts that could be seen on the CCTV footage when he first discovered the incidents.  However, Mrs Ludlow was also very clear in her evidence that she made up her own mind in relation to the disciplinary charges after listening to the claimant at the hearing.   It is unrealistic in an organisation comprising a husband and wife team that there would be absolutely no discussion between them in relation to such a serious matter.  We do not find it a flaw that they spoke about the case as it did not affect the decision to dismiss in the circumstances of this case.

 

40.     This is a small organisation where trust was important.  There were specific written terms in the claimant’s contract relating to till and cash handling and serving members of family which made clear that breach of those procedures could result in dismissal.  The claimant had signed a contract in 2011 indicating that she had read and understood the contents.  We do not find it a defect in procedures that the claimant did not possess a copy of that contract before the events in this case.  As a supervisor she would have been well aware of the importance of the strict cash procedures because of the importance of controlling stock loss.

 

41.     The respondents made it clear that, because there were two incidents and they involved the claimant and her daughter, who was also a member of staff, this meant that gross misconduct had occurred under the Till/Cash Handling Procedure.  They considered lesser sanctions but concluded that because of the breach of trust and confidence involved and the claimant’s position, that summary dismissal was warranted.  We find this to be within the band of reasonable responses for a reasonable employer in the circumstances. 

 

Summary

 

42.     The respondents believed that the claimant was guilty of misconduct.  They had reasonable grounds upon which to sustain that belief following a reasonable investigation which involved CCTV footage, interviews with staff and the claimant’s unsatisfactory explanations to them.  The reason for the dismissal was misconduct.  The process was within the band of reasonable responses for a reasonable employer in the circumstances.  The penalty was fair in all the circumstances because this was a small organisation where trust was important and the claimant had given differing accounts at different points which led the respondents reasonably to conclude that she had misled them. 

 

43.     The dismissal was not unfair and there was no breach of the right to be accompanied.  The claimant’s case is therefore dismissed in its entirety.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  7 October 2014, Belfast

 

 

Date decision recorded in register and issued to parties: