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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Hagan v Ballymaconnell Private Nursing... [2014] NIIT 935_13IT (23 May 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/935_13IT.html
Cite as: [2014] NIIT 935_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 935/13
CLAIMANT : Michael O’Hagan
RESPONDENT: Ballymaconnell Private Nursing Home Limited
Certificate of Correction
1. The decision issued on 23 May 2014 contained the incorrect wording. The correct wording is in point 2 below.
2. The claimant was represented by Mr T Warnock, of Counsel, instructed by
Campbell Fitzpatrick Solicitors
Employment Judge: __________________________________________
Date: __________________________________________
THE INDUSTRIAL TRIBUNALS
CASE REF: 935/13
CLAIMANT: Michael O’Hagan
RESPONDENT: Ballymaconnell Private Nursing Home Limited
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and it awards him compensation of £17,444.53.
Constitution of Tribunal:
Employment Judge: Employment Judge Greene
Members: Mr A Henry
Mr I Rosbotham
Appearances:
The claimant was represented by Mr T Warnock, of counsel, instructed by Campbell Stafford Solicitors.
The respondent was represented by Mr N Richards, of counsel, instructed by Worthington Solicitors.
The Sources of Evidence
1. The tribunal heard evidence from the claimant and on behalf of the respondent from Colin Nimmon and Mary Cusick. The tribunal also received two bundles of documents amounting to 360 pages approximately, an agreed chronology, and submissions from both parties on the facts and the law, witness statements and a number of legal authorities.
The Claim and the Defence
2. The claimant claims that he was unfairly dismissed because he had raised health and safety concerns and/or because he had asserted statutory rights. The claimant also alleges that his dismissal was automatically unfair, falling into the exceptions to the 12 months continuous employment that is normally required to bring a claim for unfair dismissal. The respondent denies the claimant’s claims in their entirety. It asserts that the claimant does not have the requisite period of continuous employment to bring his claim. Further it alleges that he was dismissed for a performance reason which had nothing to do with him raising health and safety concerns or alleging a statutory right.
The Issues
3. The agreed issues were as follows:-
Legal Issues
(1) (a) Did the respondent breach Schedule 1, Part 1 of The Employment (Northern Ireland) Order 2003?
(b) What, if any, effect does this have in relation to sub-section (i) liability, and (ii) compensation.
(2) Did the respondent dismiss the claimant for raising his statutory right to protection of wages and right not to suffer an unlawful deduction of wages?
(3) Did the respondent dismiss the claimant for raising health and safety concerns?
(4) Did the respondent dismiss the claimant for raising a complaint that his rights under the Working Time Regulations (Northern Ireland) 1998 had been infringed?
(5) Who bears the burden of proof in relation to the above?
Factual Issues
(1) Did the claimant have a contractual right to a bonus of up to £2,000.00.
(2) What was the contractual provision in the claimant’s contract of employment which entitled him to a bonus?
(3) Was the meeting on 9 October 2012 scheduled to discuss concerns about the claimant?
(4) Did the claimant raise a complaint with Angela Dorrian and Colin Nimmon on 12 October 2012 that he was working in excess of his contractual hours?
(5) Did Angela Dorrian tell the claimant that the bonus would cover the extra hours worked?
(6) Did the claimant receive a full explanation for the respondent’s decision to pay him a reduced bonus of £100?
(7) Did the claimant reduce agency staff costs during his employment?
(8) Did the claimant improve staff morale and staff turnover?
(9) Did Head Office have to intervene to reduce staff turnover?
(10) Did Colin Nimmon tell the claimant he would receive a “sizeable bonus” in February 2013.
(11) Did the claimant raise health and safety concerns regarding staffing levels within Ballymaconnell Nursing Home?
(12) Did the staffing levels in Ballymaconnell Nursing Home meet the levels required by RQIA in their reports of September 2012?
(13) Did Mr Wilson request the claimant to amend a monthly report to remove reference to unsafe staffing levels?
(14) Were the claimant’s concerns acted upon by the respondent?
(15) Did the claimant raise concerns about being on call without relief?
(16) Was there an on-call rota in practice?
(17) Did the claimant work in excess of his contractual hours?
(18) Was the claimant provided with support from Head Office for administrative duties?
(19) Did Colin Nimmon ask the claimant to take on chef’s duties.
(20) Did Angela Dorrian ask other staff members about the claimant’s working time practices?
(21) What was the reason for the termination of the claimant’s contract of employment?
Findings of Fact
4. (1) The respondent employed the claimant as nurse manager from 18 June 2012 until his dismissal on 21 February 2013. The respondent operates a number of nursing homes and provides some common administrative and HR services to all of them.
(2) The respondent appointed the claimant as nurse manager by letter of 12 June 2012 which set out some details of his employment.
(3) Among the details were that:-
(a) the claimant was required to work 40 hours per week, 20 as a nurse and 20 as supernumerary,
(b) his first 26 weeks were a probation period, and
(c) he would have the opportunity to earn a bonus of up to £2,000.00 based on bed occupancy and budgetary control.
(4) His contract of employment set out his main terms and conditions of employment. So far as relevant to his claims they included:-
(a) that he would be on a probation period for 26 weeks from appointment,
(b) that he would be required to work 40 hours per week Monday to Friday 8.00 am to 4.00 pm; do weekend work on a rota basis; and co-operate, when requested, to do additional hours, and
(c) the disciplinary rules and procedures.
(5) The claimant also received a job description which, so far as is relevant to his claims, stated;-
(a) In general he was responsible for all aspects of the management of the home and ensuring its viability by acting within agreed budgetary controls.
(b) That he had responsibilities in relation to the health and safety of the home, its residents and staff as enumerated at points A 4, 5, 7a, 9, 10; B 1, 4, 7; C 3, 4; and D4 and in the General Policy Statement at Appendix 6 at points 1, 2 and 3.
(c) He was responsible for ensuring budgeted operations’ profit is achieved through maximising sales volume and bed rates and maintaining a tight control on all costs.
(6) Regulation 20(1)(a) of the Nursing Homes Regulations (NI) 2005 provides:-
The registered person shall, having regard to the size of the nursing home, the statement of purpose and the number and needs of patients -
(a) ensure that at all times suitably qualified, competent and experienced persons are working at the nursing home in such numbers as are appropriate for the health and welfare of patients.
The registered person is any person who is the registered provider or registered manager in respect of the nursing home. The registered provider is the person who is registered under Part III of the Order as a person carrying on the nursing home and the registered manager is the person who is registered under Part III of the Order as the manager in respect of the nursing home. (Regulation 2(1) The Nursing Homes Regulations (Northern Ireland) 2005).
Mr Wilson is the registered provider and the claimant was the registered manager.
(7) The disciplinary rules and procedures provide:-
“Objective
Whilst it is accepted that most employees will observe acceptable standards of performance and behaviour, it is considered, nevertheless, necessary to establish a procedure for dealing with those employees who fail to comply with the rules and regulations laid down by the Company or who fail to reach or maintain acceptable standards. The objective of such a procedure is to give employees the opportunity to improve their behaviour/performance. It identifies who has authority to take disciplinary action and aims to ensure that employees are protected against unjustifiable or inconsistent disciplinary action. It also identifies the type of offence, which would result in disciplinary action being taken, what that action would be and what further action would remain if there is no improvement or a recurrence takes place.
...
General Principles
1. Management expects all its employees to abide by the terms and conditions of their employment and the rules, regulations and standards established by the company.
2. Prior to taking any form of disciplinary action there will be a thorough investigation into any allegation of misconduct or poor performance.
3. In such cases of alleged misconduct the company recognises that employees have:-
(a) The right of a fair hearing with the opportunity to state their case.
(b) The right to be accompanied at any disciplinary hearing by a fellow employee of their own choice, or a certified trade union official, if desired. Disciplinary hearings are those which could result in the administration of a formal warning or some other disciplinary penalty. Meetings held for the sole purpose of providing informal counselling are not regarded as disciplinary hearings.
4. Management further acknowledges the right of individuals to appeal against what might appear to be an unjust or unfair penalty
...
PROCEDURE
In the event of a breach of the company rules you will be required to attend a disciplinary hearing.
You will be given written notification of the date of the hearing, the allegations
and any supporting documentation and the maximum disciplinary penalty that may be issued. You will be advised of your right to be accompanied at the hearing.
Appeals Procedure
Where an employee feels that action taken under this procedure is unjustified
or unfair there shall be the right of appeal”.
(8) An on-call duty rota did not exist and the claimant found himself on call seven days per week. He queried this with the respondent in July 2012 and he was told by Angela Dorrian, the group compliance manager, that it was his responsibility to set up a rota with the deputy manager. The respondent did not provide any additional remuneration for on-call duty or time off in lieu.
(9) The claimant had concerns about the competency of the deputy manager which he raised with his superiors who also had concerns about her working standards. The result was that the deputy manager was not suitable, in the manager’s view, to be on call.
(10) On 25 July 2012, in his monthly report, the claimant recorded:-
“Dependency levels increased, simulated fire evacuation done with night staff in Zone 4, 8 residents high dependency in stairwell; average evacuation time 10 mins per resident, total time for zone evacuation 80 minutes with 2 staff on duty and no supervision for other residents?
Need for senior care assistants (X2).”
(11) The claimant met with Colin Nimmon, group financial director and his direct line manager from the Wilson Group, of which the respondent was a member, to discuss his monthly report, including the extract set out above. Mr Nimmon left to contact Mr Wilson, the owner of the home. They both returned to the home and asked the claimant to remove references to unsafe staffing levels as they did not agree with their manager’s assessment. Mr Nimmon explained to the tribunal that one of the reasons for seeking this removal was that these reports are public documents. He did not provide any further explanation why he and Mr Wilson disagreed with their manager’s operational assessment. The claimant complied with their request.
(12) On 16 August 2012 the claimant met with Colin Nimmon and Mary Cusick, human resource manager, at head office. The claimant’s supernumerary hours were discussed.
(13) On 20 September 2012 RQIA (the nursing home regulatory body) carried out an unannounced inspection of the respondent home. The inspector concluded, that while on the day of the inspection staffing levels were at the minimum recommended levels, during the week commencing 28 August 2012 the home was not meeting the recommended staffing levels and that staff concerns were validated. The inspector also raised some concerns regarding the need for the home manager (the claimant) to be involved with the delivery of care to patients on a regular basis. The RQIA required the home to ensure that the home manager had sufficient administrative hours to appropriately action the findings of the inspection and to ensure that there are sufficient staff available at all times to meet the needs of the patients.
(14) The claimant sent an email to Colin Nimmon on 24 September 2012 stating his concerns about only two staff members being on duty at night should an emergency occur requiring an evacuation of residents. Mr Nimmon did not respond to this email. He and Angela Dorrian carried out a review of night evacuation and they concluded they had sufficient staff on duty to carry out a safe evacuation. They did not explain to the tribunal how and why they came to that view. Nor is there any written record of their analysis of the claimant’s concern or in what way their analysis differed from the claimant’s or how his stated concern should be addressed or how it was misconceived.
(15) Following a request from the claimant, he met with Colin Nimmon and Angela Dorrian on 28 September 2012 to address the concerns from the RQIA inspection report and the claimant’s personal concerns. At the meeting the claimant stated he was working in excess of 40 hours per week and inquired if there was extra payment available. He also raised concerns about the lack of an on-call rota requiring him to be on call constantly. It was not contradicted that Angela Dorrian advised the claimant that the bonus scheme was designed to compensate for the extra hours worked. The claimant also raised his concern about staff shortages at night and the risks that posed and that he had insufficient administrative time at his disposal to deal with the issues raised by the RQIA report. The claimant presented them with an action plan. The respondent did not make a minute or record of this meeting.
(16) It is not clear to the tribunal whether Colin Nimmon asked the claimant to take on chef’s duties. The claimant asserts he did and the respondent denies it. There is no objective evidence to support either account.
(17) The respondent increased the staffing level between 8.00 pm and 11.30 pm but did not do anything in relation to the staffing during the night, no matter how many residents were in the home, nor what their circumstances were.
(18) On 9 October 2012 the claimant attended head office to share his feedback from the RQIA report. Colin Nimmon and Mary Cusick were in attendance. The respondent had prepared notes of matters to be raised and it made a few notes of the outcome but did not prepare any minutes of the meeting. The notes for the meeting state that three members of staff had raised concerns and the respondent wanted, “to address them before they became serious ...”. Colin Nimmon raised concerns with the claimant that he was not on the floor as nurse after 11.00 am and not assisting with the feeding or personal care of the residents. The claimant stated he did not have enough administrative hours and was trying to implement the RQIA recommendations which were his priority.
(19) The respondent’s note, made after the meeting, records inter alia:-
“Michael asked for clarification re him working extra hours. Colin reiterated not a 9-5 job would be expected that he would work some extra. Would get paid for working a nurses shift. Wouldn’t be an issue if he needed some time off but should not work extra to get these hours eg; don’t put through 10 hours per week - wouldn’t be acceptable. Colin stated that managers do get bonuses etc.”
The tribunal is satisfied that the respondent suggested that there was a relationship between working extra hours and the payment of a bonus.
(20) At the meeting Colin Nimmon raised a complaint made by nurse Jisha Nayathadon that the claimant did not allow her to administer medication. The claimant denied that. There was neither an allegation nor evidence to suggest that he had placed an embargo on her so doing but rather when on duty with him he administered the medication.
Medication is administered four times per day and the claimant was there to do it, at most, once per day on five days of the week. Nurse Nayathadon worked 12 hour shifts and had many other opportunities to administer medication.
(21) The respondent also mentioned that Melvin Hippolito had issues. The claimant explained there were competency issues about him as he did not complete documentation. Mary Cusick was aware he made errors with regard to the completion of paperwork and this is recorded in the respondent’s preparatory notes for the meeting.
(22) The respondent also raised a concern it had with Shirley Harbinson, the deputy manager.
(23) The claimant’s assertion that he was asked at the meeting if he intended to leave his job was not contradicted. He also raised his concerns about the amount of time he had to do administration and the extra hours he was working.
(24) On 10 October 2012 the claimant met with Elizabeth Roulston, a former nurse manager at the home, to discuss her concerns that the claimant was off the floor by 11.00 am and not assisting with patient care and her concern about Shirley Harbinson, the deputy manager. The claimant explained he needed more time in the office to do administrative work following the RQIA report and this was accepted.
(25) Angela Dorrian visited the home on 12 October 2012 to carry out an audit of the care plan. The claimant explained the outcome of the RQIA report and why he needed additional administrative time and was not involved in the personal care of patients.
(26) At his monthly meetings with Colin Nimmon, the claimant raised the issue of his working hours being exceeded; being on-call duty without relief and the limitation on his time as manager because of his dual role as manager and nurse on the floor; and shortages of staff with the consequent health and safety risk. It was not contradicted that the respondent checked up on the hours worked by the claimant.
(27) On 13 December 2012, at his monthly meeting with Colin Nimmon, the claimant raised the matter of the bonus that month of £100.00 (£147.04 gross) as he believed it did not reflect his hard work. Mr Nimmon said it would be reviewed in January 2013. He stated to the tribunal that additional efforts would affect the amount of bonus actually paid by increasing performance and profitability. This statement raises the expectation of a link between additional effort and the amount of the bonus when there is not a cause and effect relationship between effort and performance and profitability.
(28) On 18 December 2012 the claimant’s probation period expired. The respondent did not make any comment to him about that or extend the probation period, as was normal practice, if there were performance issues during the probationary period. On the same date Colin Nimmon wrote to the claimant enclosing the bonus cheque of £100. He also thanked the claimant in writing “for all the effort and dedication you have put into managing Ballymaconnell Nursing Home during the year”.
(29) The claimant received his monthly salary on 7 January 2013 but he did not receive any additional bonus. He telephoned Colin Nimmon to express his concern that an additional bonus was not paid.
(30) A meeting was held on 10 January 2013 between the claimant and Colin Nimmon and Mary Cusick. Again preparatory notes were made of issues to be raised but minutes were not done. One of the items discussed was occupancy levels. The agenda for the meeting does not make any reference to any criticism of the claimant.
(31) The claimant sent an email on 14 January 2013 to Colin Nimmon. He again raised the need for extra staff on duty during the night and the health and safety risks without them. He raised the staffing issues and stated that an extra hour between 7.00 am and 8.00 am would not take the pressure off the night shift. The claimant also asked about increasing staff hours and was told Colin Nimmon would have to authorise it. Colin Nimmon informed the claimant that the cost of £30,000 per annum for an extra care assistant at night was not possible. Colin Nimmon’s main concern was the claimant not being on the floor to do nursing work because he was doing administrative duties in the office which had a detrimental effect on the staffing levels.
(32) On 17 January 2013 Colin Nimmon presented the claimant with a breakdown of the finances for his six months in employment and compared it to the previous six months. He explained how the bonus was calculated. He stated that the claimant should receive a sizeable bonus in February 2013 upon review of the annual figures.
(33) On 18 January 2013 the claimant spoke to Colin Nimmon about the continuing concerns about health and safety that he had about the nightshift through lack of an adequate number of staff. Colin Nimmon asked for a breakdown of the night duties which the claimant provided on 18 January 2013. This included the health and safety concerns during the night.
(34) In January 2013 Colin Nimmon approved the claimant’s leave request for April and July 2013.
(35) The respondent offered to extend the late shift from 10.00 pm to 11.30 pm. At his monthly meeting with Colin Nimmon in January 2013 the claimant informed him that the extension of the nightshift did not address the risk during the night. The respondent advanced cost as a reason for not having additional staff on during the night.
(36) The claimant was on sick leave from 4 to 7 February 2013. On 7 February the claimant received his salary but it did not contain any further bonus payment. The claimant telephoned Colin Nimmon and told him he was not happy with the absence of any further bonus payment.
(37) Colin Nimmon and Mary Cusick visited the claimant at the home on 11 February 2013. The claimant had previously extended Shirley Harbinson’s (deputy nurse manager) probation by 13 weeks because of concerns he had. The respondent also had concerns about her. Mary Cusick proposed reducing the extension to six weeks which the claimant accepted as he felt he had no choice. Colin Nimmon gave the claimant a further breakdown of the figures for the year and stated that there would not be any further bonus paid. He presented a paper explaining how the bonus was calculated. He further stated that a better bonus would be received next year but the claimant made it clear to Colin Nimmon that he was not happy with this.
(38) Following the meeting the claimant telephoned Colin Nimmon and told him he was not happy with not receiving the bonus. He contended that he had performed his contractual remit and had brought the home’s costs down. He added that he had not a financial incentive to work beyond his contractual hours. Colin Nimmon’s account of this discussion differs from the claimant’s. In his witness statement Mr Nimmon is unable to decide whether the claimant’s statement was a comment or a threat. Mr Nimmon’s account was:-
“... he stated that if we did not reconsider the amount of the bonus paid to him there would be no incentive for him to work any additional hours in the home,”
He added:-
“... or make any efforts to increase the performance or profitability of the home in the near future ...”
Mr Nimmon represents these comments as posing a serious threat to the safety and well-being of the clients and having an adverse effort on other staff members.
Ms Cusack, relates being informed of the conversation between Mr Nimmon and the claimant by Mr Nimmon. Her account of what Mr Nimmon told her refers only to the absence of a financial incentive on the claimant to do additional hours which accords with the claimant’s account.
The tribunal accepts the claimant’s account of the conversation because it is supported by Ms Cusack’s account of what Mr Nimmon told her.
In reply to Colin Nimmon’s question as to what he wanted the claimant replied “half the bonus”. Colin Nimmon stated he would speak to the boss and get back to the claimant.
(39) Some time between 15 and 19 February 2013 Colin Nimmon, Mary Cusick and Desmond Wilson met and discussed the claimant’s position; his refusal to accept that there would not be an increase in his annual bonus; the deterioration in working relationships, his attitude to work; and his contribution as a team player was called into question. The concerns were put to their insurers seeking their advice. They contend that the respondent could not maintain a working relationship with the claimant and a decision was taken to terminate his employment. As the claimant had not worked for the respondent for 12 months the respondent decided that it would not follow the statutory procedures. Nor did it afford to the claimant his contractual rights of a thorough investigation and an opportunity to appeal against his dismissal.
Again, incredibly, minutes were not taken of this meeting nor of the decision made nor the reasons for the decision nor of the advice sought and received. Colin Nimmon does not even refer to this meeting in his witness statement.
(40) On 20 February 2013 Colin Nimmon telephoned the claimant and informed him that he would be visiting the home on 21 February and would have a meeting with him. He did not state the purpose or contents of the meeting deliberately.
(41) Colin Nimmon and Mary Cusick attended at the home on 21 February 2013. They handed a letter to the claimant terminating his employment. The letter stated:-
“The reasons for this decision are:-
· Your refusal to accept your part as a Nurse Manager in the underperformance of the Home and that, after recent discussions explaining in full the company position regarding the Manager’s Bonus, you indicated that you did not accept the decision that a performance bonus would not be paid and further indicated that you had no incentive to work the hours needed to improve the financial position of the Home.
· Occupancy has not increased for any significant period of time since your appointment.
· There are clear indications that working relationships have deteriorated since your appointment as Nurse Manager this, we believe has resulted in an increase in staff turnover which has had a detrimental effect on the performance of the Home.
· Recently, staff turnover would have increased further without the intervention of the Head Office Management Team.
· During your term as Nurse Manager your attitude to your work and your contribution as a team player working within the Home have been called into question.”
The dismissal letter added:-
“As you have been employed with us for less than 12 months, we have no legal obligation to follow statutory procedures and therefore your employment will be terminated from today 21st February 2013. You will receive three months salary in lieu of this notice as per your Terms and Conditions of Employment. Payment will be made via BACS at the end of February payroll run and we will also forward your P45 at this time.”
The letter continued:-
“We will be informing staff and the RQIA that you have been dismissed from your position on the grounds of performance and that there has been no issues relating to misconduct surrounding your dismissal.
We have not provided you with the right to appeal this decision as you have less than one year’s service with the company.”
(42) The claimant stated that the decision was unfair and he contacted the home owner, Mr Wilson, who said that he could not interfere with Colin Nimmon’s decision. The claimant was not given a right of appeal. The respondent did not follow the statutory dismissal procedures nor the applicable procedures contained in the claimant’s contract of employment.
(43) In the year to December 2012 occupancy rate was up (91.54%) on the previous year (89.6%) and on what was budgeted (88.46%). The income was up on the previous year and on what was budgeted. The only negative factor was agency costs of £45,012 for the whole year, with a budgeted expenditure of £nil for agency costs despite agency costs of £17,416 the previous year and the acceptance by the respondent that agency workers would be used. The budget was clearly prepared before the claimant was employed and his responsibility is at most for 6 months.
However it is accepted that the claimant reduced agency costs during his period as manager.
The respondent admits that the claimant’s representations about the bonus were a factor in the reason to dismiss him.
According to the respondent during 2012, taken as whole, the occupancy rate increased.
The fourth reason is conditional and subjective. There was not any evidence before the tribunal to show staff turnover or to relate that to the manager. No explanation has been provided for this assertion.
The fifth reason is very subjective and no evidence was adduced in support of these assertions and it merely relates at worst an allegation. There is no indication whether the allegation had been upheld.
(44) The claimant contends that the turnover of staff was due to staff being overworked arising from understaffing. The respondent did not challenge this. It is not clear what the claimant could have done to change this apart from his representation continuously for additional staff.
The respondent referred to three employees:-
(a) Shirley Harbinson, about whom both the claimant and the respondent had concerns and both agreed that an extension of probation was appropriate, although they differed on the length of the extension of probation period. The respondent asserts that but for its intervention that she would have resigned.
(b) Rob Labayo, who wanted paid for his breaks. The claimant refused to do so in keeping with the respondent’s policy. Mr Labayo resigned. Mr Nimmon and Ms Cusick spoke to him, agreed to give him additional hours and he withdrew his resignation; and
(c) Lisa Mahood who resigned because her mother, who lived in Donegal, was ill and she wanted to look after her. Lisa had complained about bullying. The perpetrator was suspended and ultimately dismissed. The claimant had met her and assured her bullying would not be tolerated as is supported by the perpetrator’s dismissal. Ms Cusick also met her and suggested she consider applying for unpaid leave and renegotiate with the claimant her shift pattern. Lisa withdrew her resignation.
While the respondent’s intervention may have resulted in the above individuals not resigning it does not reflect a criticism of the claimant as the respondent’s intervention followed on the claimant applying the respondent’s policy which the respondent elected to change and to enter into contractual negotiations with the employees which was outside the claimant’s authority.
(45) The claimant believes he was dismissed because he continuously raised health and safety concerns and because he was unhappy with the lack of a significant bonus payment.
(46) In relation to the respondent’s stated reasons for dismissal the tribunal is not satisfied they were the principal reasons for dismissal. In so concluding, the tribunal had regard on the following matters:-
(a) The criticisms of the reasons for dismissal, advanced by the respondent, as set out above.
(b) That the claimant, in the absence of any indication whatsoever to the contrary, had satisfactorily discharged his probation period and on the same day had merited praise and thanks from the respondent.
(c) The absence of
any significant new issue arising after
18 December 2012.
(47) Having seen all the witnesses give their evidence the tribunal is satisfied that the key factors in the claimant’s dismissal were his persistent demand for more staff on duty at night and for a bigger bonus payment. In so concluding the tribunal had regard to the following matters:-
(a) It is not satisfied that the reasons given for the dismissal by the respondent represent the principal reason for the claimant’s dismissal for the reasons set out above at paragraph 4(46).
(b) The claimant successfully completed his probation period by 18 December 2012 without either adverse comment about his performance or an extension of his probation period which was normal practice if there were performance issues. Indeed on the same date, in a letter, Mr Nimmon commended the claimant for his hard work and dedication.
(c) The agenda prepared by the respondent, for the meeting with the claimant on 10 January 2013, does not make any reference to any criticism of the claimant which had been the respondent’s practice in previous meetings with the claimant where an agenda had been prepared beforehand.
(d) The only significant issues between the claimant and the respondent after his successful completion of his probation period were his persistent demand for additional staff during the night and for a bigger bonus.
(e) The respondent’s reliance on the non-increase of occupancy for any significant period of time is not credible for the following reasons:-
(i) Under the claimant’s stewardship the occupancy rate increased from 88.46% (2011) to 91.54% (2012).
(ii) There was not any evidence before the tribunal that the claimant had been given a target occupancy rate.
(iii) The room for increasing the occupancy rate was limited in that the maximum number of residents the home accommodated was 25 and the average number of residents was 22 or more.
(f) The specific criticisms raised by the claimant of certain members of staff were legitimate managerial concerns, some of which the respondent shared. That persons challenged by the claimant were not pleased with that is hardly surprising.
(g) There was not any evidence before the tribunal that staff turnover had increased or that it had a detrimental effect on the performance of the home. This is merely an assertion by the respondent.
(h) The intervention of management may have led to a number of staff not resigning but that intervention turned out to be a process when the respondent varied its own policy or entered into contractual negotiations which the claimant did not have authority to do.
(i) The criticism of the claimant’s “attitude to your work and contribution as a team player” are very subjective comments. Neither was specified. Nor was any evidence given about who levelled these criticisms or specifying, when, how often, or the nature of the complaints. Nor did the respondent state whether it accepted, what is in reality, only an allegation or someone’s opinion.
(48) From 21 February to 9 September 2013 the claimant had done sporadic work for an agency when he earned £1,607.46.
(49) On 9 September 2013 the claimant began working as a manager of another nursing home on a temporary six month contract. The contract was to cover for someone off sick although it had the potential to be extended. His salary was £37,000.00 per annum.
(50) From the temporary post in the other home the claimant was dismissed on 10 January 2014 following a three month probation review. The claimant had made a number of representations to his new employers similar to those that he had made to the respondent.
(51) The new employer terminated his contract because it asserted that he did not reach an acceptable standard during the probation period and the new employer did not believe that he would be able to meet the standards required in the post. The letter also set out a number of criticisms which included, a lack of communication skills, an inability to conduct investigations/deal with complaints and grievances and a lack of leadership and management skills.
The Law
5. (1) An employee has the right not to be unfairly dismissed by his employer (Article 126 The Employment Rights (Northern Ireland) Order 1996).
(2) The right to make a claim for unfair dismissal does not arise unless the employee has been continuously employed for a period of not less than one year ending with the effective date of termination or if less his circumstances fall within one of the exceptions to the 12 month continuous employment requirement (Article 140 The Employment Rights (Northern Ireland) Order 1996).
(3) An employee with less than 12 month’s continuous employment who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one, the principle reason for the dismissal is that, having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities or where there was no health and safety representative or health and safety committee or if it was not reasonably practicable for the employer to raise the matters by those means he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. (Articles 132 and 140(3)(c) The Employment Rights (Northern Ireland) Order 1996).
(4) An employee with less than 12 month’s continuous employment who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one, the principle reason for the dismissal is that the employee brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or alleged that the employer had infringed a right of his which is a relevant statutory right. It is immaterial for the purposes of Article 135(1) whether or not the employee has the right or whether or not the right has been infringed but for the provision to apply the claim to the right and that it has been infringed must be made in good faith. It is sufficient for Article 135(1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was (Articles 135 and 140(3)(c) The Employment Rights (Northern Ireland) Order 1996).
(5) An employee with less than 12 month’s continuous employment who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one, the principle reason for the dismissal is that, the employed refused or proposed to refuse to comply with a requirement imposed, or proposed to be imposed, in contravention of the Working Time Regulations (Northern Ireland) 1998 or refused or proposed to refuse to forego a right conferred by the 1998 Regulations or failed to sign a workforce agreement for the purpose of the 1998 Regulations or to enter into, agree to, vary or extend any other agreement with the employer which is provided for in the 1998 Regulations where the employee is a representative of a workforce for the purpose of Schedule 1 of the 1998 Regulations or a candidate in an election to become a representative and he performed or proposed to perform any function or activity as a representative or candidate (Articles 132A and 140(3)(cc) The Employment Rights (Northern Ireland) Order 1996).
(6) In an unfair dismissal claim:-
“The burden of proof is expressed neutrally but following Maund v Penwith District Council [1984] IRLR 24; [1984] ICR 143 the burden will be on the employer unless the employee does not have one year’s service and needs to establish that the tribunal has jurisdiction to hear the claim in which case the onus will be on the employee (see para [809] above). ... (Harvey on Industrial Relations and Employment Law D1 [1963]).”
(7) A statutory right includes any right conferred by The Employment Rights (Northern Ireland) Order 1996 or rights under the Working Time Regulations (Northern Ireland) 1998 as amended. (Article 135(4) The Employment Rights (Northern Ireland) Order 1996).
(8) A worker shall not suffer any deduction from his wages unless such deduction is authorised by virtue of a statutory provision or a relevant provision of the worker’s contract and the worker has previously signified in writing his agreement or consent to the making of the deduction (Article 45(1) The Employment Rights (Northern Ireland) Order 1996).
(9) If an employee is dismissed for a reason under Article 132(1)(a) the minimum award for the basic award shall be £5,500.00 (Article 154(1) The Employment Rights (Northern Ireland) Order 1996).
(10) If the reason for the dismissal is not that under Article 132(1)(a) but is unfair when judged by Article 130A then the minimum award for the basic award shall be not less than four week’s pay (Article 154 The Employment Rights (Northern Ireland) Order 1996).
(11) The amount of any compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer (Article 157 The Employment Rights (Northern Ireland) Order 1996).
(12) If the failure to comply with the statutory procedures is wholly or mainly attributable to failure by the employer to comply with the requirements of the procedure the tribunal shall increase any award which it makes to an employee by 10% and may if it considers it just and equitable in all the circumstances to do so increase it by a further amount but not so as to make a total increase of more than 50% (Article 17(3) The Employment (Northern Ireland) Order 2003).
6. Application of the Law and Findings of Fact to the Issues
Burden of Proof
(1) Mr Warnock advanced an attractive argument that where an employee, claiming unfair dismissal, lacks the 12 months’ continuous employment and is seeking to rely on the exceptions to that requirement the legal burden of proof is neutral.
(2) However the decided cases, principally Smith v Hayle Town Council [1978] ICR 996 and Penwith District Council [1984] IRLR 24, and commentary in Harvey on Industrial Relations and Employment Law DI 1963 state the legal burden of proving unfair dismissal is on the employee where he lacks the 12 months’ continuous employment.
(3) This approach has been followed subsequently in Jackson v ICS Group of Companies Ltd EAT/499/97 in which the newer statutory wording was considered. The EAT stated that the newer wording did not alter the burden of proof. It was also followed in Ross v Eddie Stobart Ltd, UKEAT/0068/13 RN and Eves v Omagh Minerals Ltd (2013) NIIT 47/13.
(4) Mr Warnock’s submission invites the tribunal to conclude that Jackson is wrong, that Maund does not say what the commentaries state it says and that it is unsafe to follow Smith as the wording of the statute has changed.
(5) Given the line of authorities that has followed the Smith decision the tribunal follows that line of authority. If a change is to occur it is for the superior courts to make the change.
Reason for Dismissal
(6) Given the claimant’s duties and responsibilities, set out above, the tribunal is satisfied that he falls within Article 132(1)(a) and (c) of The Employment Rights (Northern Ireland) Order 1996.
(7) The tribunal is satisfied, on the balance of probabilities, that the principal reason for the claimant’s dismissal was because the claimant, being the person designated to carry out activities in connection with preventing or reducing risks to the health and safety of the residents of the home, discharged his responsibilities by seeking from his employer additional staff during the night hours. In so concluding, the tribunal had regard to the following matters:-
(a) Having seen and heard from the witnesses the tribunal found the claimant a more persuasive witness.
(b) The evidence on behalf of the respondent, on important matters, consisted of assertion without evidence to support the assertion or even an explanation of how and why the assertion was made e.g. the rejection of the claimant’s case for the need for an additional member of staff during the night hours.
(c) The tribunal found it incredible that an apparently well organised business with a number of nursing homes would not take minutes or make notes of meetings which the respondent relies on as important in establishing the claimant’s failure to perform. This is especially surprising at a meeting at which it was decided to dismiss the claimant, the very date of which is unknown, or at meetings for which the respondent prepared a written agenda or notes of issues to be raised.
(d) In the letter of dismissal the respondent relies on performance failure as justifying its decision to dismiss the claimant yet persuasive evidence of failures in performance was noticeably absent, as set out above.
(e) The important factors, it seems to the tribunal, that led to the claimant’s dismissal were financial matters. While the respondent did not seek to translate the claimant’s alleged performance failure into a financial cost there were two matters persistently raised by the claimant which had a distinctive financial aspect, his continuing claim for a larger bonus and his demand for additional staff during the night which the respondent valued at £30,000 per annum for one additional member of staff and which it had determined not to concede.
(f) Of the two matters raised by the claimant the greater financial cost was the cost of an additional member of staff during the night at £30,000 as opposed to a bonus which at is maximum was £2,000. In addition the staffing issue was of greater significance as it could lead to falling foul of the RQIA guidelines on staffing which could put at risk the existence of the home.
It seems to the tribunal that this was a serious matter, about which the claimant complained throughout his employment with the respondent, which the respondent failed to address or to explain its rationale for rejecting its manager’s operational assessment. This issue was against a background where complaints about insufficient staff levels by staff members were validated and a finding by RQIA that during an inspection they found insufficient staffing levels in the week commencing 28 August 2012.
(g) The persistent demands for an increased bonus cannot have been the principal reason for the claimant’s dismissal as the respondent held out the prospect that the bonus would be increased in February 2013 and engaged in negotiations with the claimant about the level of bonus he was seeking.
(8) The tribunal is satisfied that the claimant’s demand for an increased bonus amounts to an assertion of a statutory right for the purpose of Article 135 of the Employment Rights (Northern Ireland) Order 1996.
(9) The tribunal is not persuaded that the raising of a complaint under the Working Time Regulations (Northern Ireland) 1998 that his rights had been infringed was a reason for his dismissal. While the claimant raised the matter of working excessive hours the respondent denied that and there was no compelling evidence that the claimant’s account on this matter is to be preferred to the respondent’s account.
(10) As the tribunal has found that the principal reason for the claimant’s dismissal falls under Article 132(1) The Employment Rights (Northern Ireland) Order 1996 the tribunal has jurisdiction to hear the claim as it falls within the exception at Article 140(3)(c) of The Employment Rights (Northern Ireland) Order 1996.
(11) A dismissal under Article 132(1)(a) is automatically unfair.
(12) Where the reason for the dismissal falls under Article 132(1)(a) the minimum award for the basic award is £5,500 (Article 154(1) Employment Rights (Northern Ireland) Order 1996).
(13) The claimant secured other employment for six months from 9 September 2013 on a comparable salary. He was dismissed on 10 January 2014 following a probationary review. As the reason for the dismissal was his failure to reach an acceptable standard during the probationary period the tribunal does not make any award for loss of earnings during the six month period as the criticisms of him might be well-founded.
(14) The tribunal considers a future loss of six weeks from 9 March 2014 as the earlier job was a six month post and there was no guarantee it would continue after the six month period.
(15) Between the date of his dismissal and 9 September 2013 the claimant earned £1,607.46 doing intermittent work through the First Choice Selection Agency.
(16) The claimant received Jobseekers Allowance from 22 May 2013 to 24 May 2013 amounting to £42.60.
(17) The tribunal is satisfied that the claimant mitigated his loss.
(18) The tribunal is not persuaded that there was any contributory fault on the part of the claimant.
(19) The tribunal considers that it would be just and equitable to award an uplift of 30%. The respondent made a deliberate and calculated decision not to follow the statutory procedures and took the risk that the absence of 12 months’ continuous employment would deprive the claimant of the protection of the statutory procedures.
(20) Accordingly the tribunal awards compensation as follows:-
Basic award
Under Article 154 The Employment Rights
(Northern Ireland) Order 1996 = £5,500.00
Compensatory Award
From 21 May 2013 to 8 September 2013.
£493.85 x 15.86 = £7,832.46
Earnings = £1,607.46
Loss = £6,225.00
Future Loss
9 March 2014 to 20 April 2014
£493.85 x 6 = £2,963.10
Compensatory award £9,188.10 + 30% uplift = £11,944.53
Total Compensation = £17,444.53
Prescribed period is 22 February 2013 to 22 May 2013
Prescribed amount is £17,444.53 - £6,225.00 = £11,219.53
(21) This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 3, 4, 5 December 2013, 8, 17 January 2014.
Date decision recorded in register and issued to parties: