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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Herald v Stephen Warwick and Heather He... [2014] NIIT 958_13IT (11 July 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/958_13IT.html
Cite as: [2014] NIIT 958_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 958/13
CLAIMANT: Mark Herald
RESPONDENT: Stephen Warwick and Heather Henry t/a Bullseye Ltd
DECISION
The decision of the tribunal is that the claimant was automatically unfairly dismissed for failure to follow the SDP. The claimant is awarded compensation in the sum of £1,400.00.
Constitution of Tribunal:
Employment Judge: Mrs Ó Murray
Members: Mr A Kerr
Mr I Rosbotham
Appearances:
The claimant was represented by Ms F McFarland.
The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.
The Claim
1. The claimant claimed unfair dismissal on ordinary principles and automatic unfair dismissal for failure to comply with the Statutory Dismissal Procedure (SDP).
2. Mr Sheridan conceded that the claimant was automatically unfairly dismissed for failure to follow the SDP in that no outcome letter was sent to the claimant following the decision to dismiss and he was therefore not advised of his right to appeal. The respondent conceded that the basic award of four weeks’ wages was payable but argued that no further compensation should be payable on Polkey principles.
The Issues
3. The issues for the tribunal were as follows:
(1) If a proper procedure had been followed would it have made a difference to the outcome given the nature of the misconduct alleged? As a consequence, should a Polkey deduction apply to the compensatory award and if so by what percentage?
(2) What level of compensation whether by way of basic and compensatory award, is payable?
The Law
4. The right not be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the ERO”). Misconduct falls under one of the potentially fair reasons for dismissal set out at Article 130. Under Article 130A an employee is regarded as automatically unfairly dismissed if the SDP has not been followed due to the employer’s failure.
5. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in 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 Northern Ireland Court of Appeal decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 outlines the task for the tribunal in a misconduct dismissal case. The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the procedure followed, and the employer’s act in dismissing the employee, fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.
7. Under Article 146 of ERO, the tribunal must make an award of four weeks’ pay for procedural unfairness unless the tribunal considers that such an award would result in injustice to the employer.
8. The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.
Sources of Evidence
9. The tribunal heard evidence from Mr Warwick the Managing Director of the respondent limited company. The claimant gave evidence on his own account. The tribunal had regard to the oral and written evidence and the documents to which it was referred.
Findings of Fact and Conclusions
10. The claimant was employed as a barman from 20 October 2007 until 17 May 2013 when he was summarily dismissed for gross misconduct. The reason given by the respondent for the dismissal was in relation to suspected theft and dishonesty.
11. The claimant’s gross earnings at the relevant time were £280.00 per week and his net pay was £220.00 per week.
12. The basic award calculation is as follows:
£280.00 gross x 5 = £1,400.00.
13. In January 2013 a memorandum was sent to all staff by Mr Warwick alerting them to huge losses in the business over the Christmas period. It was found that there was a mismatch between stock levels and takings.
14. The Managing Director conducted spot checks to see when discrepancies between stock and takings were occurring and very quickly the focus was on the claimant as larger discrepancies occurred on his shifts than on others. An independent stocktaker was brought in to do an audit and to conduct spot checks and on the shifts on 14/15 March and 21 March 2013 large discrepancies where found when the claimant was working on his own.
15. Mr Warwick also checked the CCTV for that period and concluded that the number of drinks served by the claimant in that period did not tally with the till receipts. The claimant in evidence agreed that he later saw the CCTV footage in the PSNI station and the height of his point on that was, that whilst it showed pints on the counter, it did not show him working at the till. We find it reasonable for Mr Warwick to have relied on the CCTV footage as part of the evidence before him in relation to the discrepancy issue.
16. The claimant was then asked by Mr Warwick for an explanation in relation to the discrepancies and his response was that he had done nothing wrong.
17. The claimant was suspended on 2 April 2013 and the PSNI were contacted by the respondent.
18. The claimant was invited by letter to a meeting which took place on 17 May 2013 with Mr Warwick. This meeting was recorded by the claimant and a transcript was available at the tribunal hearing. Mr Warwick agreed that the transcript reflected the flavour of the meeting. In that transcript it records Mr Warwick’s assessment of the problem facing the employer: “when you don’t work things don’t go missing and when you do work things do”.
19. At the meeting the claimant gave no reason as to why that level of discrepancies might have occurred and reiterated that he was innocent and had done nothing. At the meeting on 17 May the claimant was given a full opportunity to put his side of the case and was fully aware of what was being put to him.
20. Mr Warwick decided, in the absence of an explanation for the discrepancy, to dismiss the claimant for gross misconduct. No outcome letter was sent to the claimant and he was therefore not told of his right of appeal. This was a defect in procedure in that the SDP was not followed and the claimant was therefore automatically unfairly dismissed.
21. In summary Mr Warwick conducted his own investigation into matters, brought in an independent auditor and had CCTV footage before him which supported the allegations against the claimant. At no point did the claimant dispute that there were two sizeable shortfalls on his shifts but his only response was that it was not his fault.
22. The claimant’s case was that there was not enough evidence to sack him. Further his case was that there was a defect in procedure in that the meeting of 17 May took place before the investigation had been completed.
23. The claimant’s case was that there was an issue about the till key, that customers were allowed behind the bar and that loyalty cards might be an issue. The first two of these matters were not relevant to the shifts in question because there was no issue about till keys and no issue about the customers being behind the bar. The loyalty cards point could not account for the level of deficit on the shifts analysed.
24. We find the point made in relation to the text messages irrelevant to the issues in this case as it was not entirely clear the point being made by the claimant and in any event they were not referred to by him in the course of the disciplinary process nor was Mr Warwick aware of them when he reached the decision to dismiss.
25. The reason for the dismissal was that the Managing Director could find no reasonable reason for the deficits occurring on the claimant’s shifts. The claimant was working on his own on the shifts and there was no issue of customers being behind the bar during the relevant shifts.
26. We accept that, as the allegation related to theft or dishonesty, it amounted to gross misconduct. We accept that Mr Warwick believed that the claimant was guilty of dishonesty on the evidence before him and that he had reasonable grounds upon which to base that belief. We find that the reason for the dismissal for the misconduct alleged and that it did amount to gross misconduct.
27. We note the evidence from the auditor’s report that the discrepancies reduced further after the claimant left the respondent’s employ.
28. It is our finding that even if the claimant had been notified of his right of appeal and had appealed that this would have made no difference to the outcome. There was ample evidence before the respondent upon which to base their decision to dismiss. Given the nature of the business and the nature of the allegations the decision to dismiss was well within the band of reasonable responses for a reasonable employer.
29. We find that a Polkey deduction should be made and in the circumstances of this case assess the Polkey deduction at 100%. No compensatory award is therefore payable. Our reasons for this relate principally to the fact that at no stage, even at tribunal, did the claimant give any reasonable explanation for the shortfall on his shifts. His attitude seems to have been that it was for the respondent to provide incontrovertible proof of his guilt and that it was therefore enough for him to baldly deny wrongdoing. The claimant also made it clear during the meeting of 17 May when he was dismissed that he intended at that stage to go to the tribunal so we have doubts as to whether or not he would have exercised his right to appeal in any event.
30. The claimant is awarded the basic award for automatic unfair dismissal in the sum of £1400.00 as calculated above.
31. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 2 June 2014, Belfast.
Date decision recorded in register and issued to parties: