Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 338/14

 

 

 

CLAIMANT: Ciaran Hughes

 

 

RESPONDENT: Jack Caughey and Una Caughey, t/a Little Italy

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed and ordinarily unfairly dismissed. The tribunal reduces his compensation by 100% for the reasons set out in the decision. It awards him four weeks' gross salary under Article 154(1A) The Employment Rights (Northern Ireland) Order 1996 which it calculates at £1470.00.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Greene

 

Members: Mrs C Stewart

M J Law

 

 

Appearances:

 

The claimant was represented by Mrs Breedagh Hughes.

 

The respondent was represented by Mr Martin Wolfe, senior counsel, instructed by Paul McMullan, Solicitor.

 

SOURCES OF EVIDENCE

 

1. The tribunal received evidence from the claimant and on behalf of the respondent from Jack Caughey, Una Caughey, Nicola Hill and Nicola Meese. The tribunal also received a bundle comprising 258 pages; extracts from codes of practice in relation to disability and data protection; an employment practice code for data protection; a Schedule of Loss; a list of authorities; and a copy of CCTV footage.

THE CLAIM AND DEFENCE

 

2. (1) The claimant claimed that he was automatically unfairly dismissed, ordinarily unfairly dismissed and suffered discrimination on the ground of disability.

 

(2) The respondent disputed the claimant's claims in their entirety.

 

(3) The respondent's title was amended by consent to Jack Caughey and Una Caughey, t/a Little Italy.

 

THE ISSUES

 

3. (1) At a Case Management Discussion on 12 May 2014 the precise legal and main factual issues for determination were agreed as follows:-

 

Legal Issues - Disability Discrimination

 

(i) Preliminary issue: was the claimant a "disabled person" within the meaning of Section 1 of the Disability Discrimination Act 1995 (as amended), at the date of the termination of his employment (2 December 2013)?

 

If the tribunal answers question (i) in the affirmative, the following issues arise:-

 

(ii) Did the respondent directly discriminate against the claimant on the ground of his disability, contrary to Section 4 of the Disability Discrimination Act 1995 (as amended) by dismissing him from his employment?

 

(iii) Did the respondent discriminate against the claimant contrary to Section 4 of the Disability Discrimination Act 1995 (as amended) by failing to comply with a Section 6 duty (ie, a duty to make adjustments) in relation to the claimant?

 

(a) Should the respondent have taken the following steps by way of adjustment:-

 

(aa) By carrying out a risk assessment to identify any particular hazards with regard to the health and well-being of the claimant;

 

(bb) By changing working arrangements in recognition of the need for a less stressful working environment for the claimant;

 

(cc) By permitting time off for medical treatment.

 

(iv) What remedy, if any, is the claimant entitled to?

 

Factual Issues - Disability Discrimination

 

(v) What condition (constituting a single "disability") did the claimant suffer from?

 

(vi) Did the respondent know that the claimant suffered from a condition which amounted to a "disability" for the purposes of Section 1 of the Disability Discrimination Act 1995?

 

(vii) What adjustments, if any, ought the respondent to have made in respect of the claimant, in order to comply with a Section 6 duty?

 

(viii) If the respondent discriminated against the claimant contrary to the Act, what impact did that have on him?

 

Unfair Dismissal - Legal Issues

 

(ix) Was the claimant's dismissal automatically unfair for the purposes of Article 130A of The Employment Rights (Northern Ireland) Order 1996, by reason of a failure on the part of the respondent to comply with one of the procedures set out in Schedule 1 of The Employment (Northern Ireland) Order 2003?

 

(x) Further and in the alternative, was the claimant otherwise ordinarily unfairly dismissed having regard to Article 130 of The Employment Rights (Northern Ireland) Order 1996?

 

(xi) Did the respondent act reasonably or unreasonably in treating the claimant's conduct as a sufficient reason for dismissing him?

 

(xii) Should a ' Polkey reduction' be made, taking into account all the circumstances of the case? If so, what percentage reduction should be applied?

 

(xiii) Should a 'contributory conduct reduction' be made taking into account all the circumstances of the case? If so, what percentage reduction should be applied?

 

(xiv) What remedy, if any, is the claimant entitled to?

 

Unfair Dismissal - Factual Issues

 

(xv) What investigation, if any, did the respondent carry out?

 

(xvi) What was discovered by the respondent as a result of any investigation which was carried out?

 

(xvii) Why was the claimant dismissed by the respondent?

 

(xviii) Did the respondent dismiss the claimant?

 

(aa) by reason of his conduct on 1 December 2013; and

 

(bb) by reason of his aggressive conduct towards customers in September 2013 and November 2013?

 

(xix) If the claimant has suffered a loss, what is the loss, and what steps (if any) has he taken in an effort to mitigate that loss?

 

(2) The claimant applied to have CCTV footage excluded from the tribunal as it was in breach of the Data Protection Act 1998 and should not be accepted in evidence. The respondent opposed the application to exclude the CCTV footage.

 

(3) The tribunal refused to exclude the CCTV footage and gave oral reasons for its decision on 13 January 2015.

 

(4) Before the hearing of evidence Mr Wolfe, on behalf of the respondent, indicated that the respondent accepted that the claimant had been automatically unfairly dismissed and ordinarily unfairly dismissed. He stated therefore that the only issue before the tribunal, in relation to the unfair dismissal claims, was should there be a reduction in any compensation to which the claimant is entitled and the amount of any reduction following the decision in Polkey or on the ground of contributory fault.

 

(5) At the end of the cross-examination of Mrs Una Caughey the claimant's representative indicated that the claimant was abandoning his claim for disability discrimination. In the absence of any objection from the respondent, that part of the claimant's claim was dismissed.

 

(6) The respondent's representative elected not to cross-examine the claimant.

 

FINDINGS OF FACT

 

4. (1) The claimant was born on 19 June 1980 and worked for the respondent from 2 January 2007 to 2 December 2013 when he was summarily dismissed for gross misconduct. He worked as a pizza chef and following promotion as a supervisor from 16 October 2013.

 

(2) The respondent owns and operates a take-away pizza business, known as Little Italy, at 13 Amelia Street, Belfast.

 

(3) The respondent business employed three full-time staff, Jack Caughey, Nicola Meese and the claimant. Una Caughey also worked in the business but not usually at the pizza premises. There was a number of other part-time staff including Nicola Hill who became full-time after the claimant's dismissal. In the absence of Jack Caughey, Nicola Meese was the senior person when on duty.

 

(4) The claimant is a close friend of Christopher Hill, Mrs Una Caughey's son. Christopher Hill worked in the business until September 2013. The claimant considered himself a friend of Jack and Una Caughey although Mr and Mrs Caughey did not see the relationship as one of friendship. Nicola Hill is married to another son of Mrs Caughey, Kieran Hill. Nicola Meese is a niece of Mrs Caughey.

 

(5) The claimant suffered from depression, having been diagnosed initially in 1998. He received medical intervention and treatment from time to time during the ensuing years.

 

(6) The claimant worked 35 hours per week and his weekly wage was £367.50 gross and £304 net. On or about 16 October 2013 he was promoted to supervisor and was provided, for the first time, with a written contract of employment. Although the written contract of employment refers to providing the claimant with a disciplinary policy this was not provided nor was the contract of employment signed by either the claimant or the respondent.

 

(7)           Apart from the unsigned contract of employment for the claimant, for his new post of supervisor in October 2013, the respondent does not have any written documents setting out policies or procedures regulating staff behaviour within the premises, or a written disciplinary code or any means of recording ontoward incidents, apart from the CCTV which is neither monitored nor reviewed. However staff members were told to report to the respondent all ontoward incidents.

 

(8)           The respondent gave evidence that the communication of policies and procedures and the training of staff, was done by Jack Caughey orally when on shift with the other staff members. There is not any record of what was told to whom or when. The claimant disputed there was any training of staff and his evidence on this was not challenged.

 

(9)           However, so far as relevant to this claim, the tribunal received evidence from all the respondent's witnesses that staff members were told not to come from the staff area into the public area to deal with difficult or unruly customers. The instruction to staff members was to try and calm the situation down verbally or deal with the unruly customers' orders as a priority or if violent or troublesome to the staff or other customers to phone the police. It is not disputed that the police have attended on 12 occasions to deal with incidents of anti-social behaviour and assault at the premises, including the arrest of an individual in the premises.

 

(10)        The claimant states, in his witness statement, that the practice to control unruly customers included what is set out at 4(9) above but also included physically removing them from the premises. He contended that Jack Caughey was aware of this. The claimant was not challenged on this evidence nor was his account put to the respondent's witnesses.

 

(11)        Jack Caughey asserted that Nicola Meese rang him on 8 September 2013 and informed him of an incident in which the claimant had gone into the street to intervene in a dispute between two members of the public. Mr Caughey alleges that he immediately rang the claimant and reminded him that he was not to emerge from behind the counter again and not to intervene in disputes with members of the public. He further alleged that the claimant acknowledged the instruction and did not dispute the matter.

 

(12)        Mr Caughey stated that though Nicola Meese reported this incident it was Nicola Hill who had been on duty at the time. Nicola Hill had not reported it to him at the time. However she did report the incident to Nicola Meese around the time it happened.

 

(13) On Sunday 1 December 2013 the claimant was on shift with Nicola Hill and Nicola Meese. That day he was extremely anxious and agitated because of very serious health issues then affecting both of his maternal grandparents. The claimant left his shift early, around 8.30 pm, by reason of aggravation of his distressed state which he alleges was caused by his two colleagues, Nicola Meese and Nicola Hill. In their accounts of the incident it is accepted the claimant alleged they were badgering him but they denied it. Prior to leaving the claimant had arranged for Christopher Hill to finish the shift. The claimant also attempted to contact Jack Caughey at home unsuccessfully but he had a conversation with Una Caughey.

 

(14) As the respondent believed the shop was short-staffed, by reason of the claimant's early departure, Jack Caughey attended at the shop to complete the rest of the shift. On his arrival, Christopher Hill left the premises.

 

(15) Whilst in the shop on 1 December 2013, following the claimant's departure from the premises, Nicola Meese and Nicola Hill informed Jack Caughey of two incidents on 4 September and 11 November 2013, in which the claimant had behaved inappropriately, including man-handling of customers, on both occasions.

 

(16) Jack Caughey, later that night, accessed the CCTV and watched the footage of the two incidents.

 

(17) The CCTV footage provides a visual record only. It does not have any sound.

 

(18) The incident on the 4 September 2013 lasted approximately eight minutes. The claimant and Nicola Hill were both on duty that night. It showed, and this has been accepted by both parties, a drunk man entering the premises carrying a plastic bottle of cider. The claimant emerged from behind the counter, which separates the staff area from the public area, on four occasions.

Initially there appears to have been a verbal exchange between the claimant and the drunk man followed by the claimant emerging from behind the counter and pulling and pushing the drunk man across the public area in the direction of one of the two doors. In the course of this action the drunk man came into contact with the doorframe and fell to the ground whereupon the claimant dragged him into the street and rolled his bottle of cider out onto the street after him and then returned to the staff area behind the counter. The drunk man did not appear, on the evidence of the CCTV footage, to have made any physically hostile gestures prior to being moved in the direction of the door.

 

The drunk man re-entered the premises and began a verbal exchange with the claimant. He approached the counter and started to grab paper from the staff side of the counter. The claimant then came from behind the counter a second time and, after a verbal exchange with the drunk man, returned to the staff side of the counter. The claimant emerged a third time from behind the counter after further verbal exchanges with the drunk man. He grabbed the drunk man and manhandled him backwards towards the exit. The drunk man came into contact with a window and he fell backwards. The claimant returned to behind the counter but quickly emerged again into the public area and wrestled with the drunk man who fell backwards against the window support. The claimant then dragged the drunk man onto the street by the arms.

 

As this was going on the other member of staff, Nicola Hill, continued to do her work and did not appear to be involved in the incident in any way or to be in any way alarmed, disconcerted or even surprised by the events going on close to her. Nicola Hill did not report this incident to Jack Caughey because she alleges she 'was new and did not want to rock the boat'. Nor did she inform Nicola Meese.

 

(19)        On 18 November 2013 the second incident occurred. On shift that night were the claimant, Nicola Hill and Nicola Meese who was in charge. According to the CCTV footage it lasted 9 minutes and occurred around 1.00 am, closing time. It showed four men in the shop one of whom was purchasing a pizza. Nicola Meese was trying to encourage the purchaser of the pizza to leave the premises. The claimant emerged from the staff area into the public area. He then took the customer eating the pizza by the arm and pushed him from the premises. The claimant thereupon took up a position in the doorway with the four men outside and engaged in conversation with them. He then proceeded into the street grabbed the man with the pizza by the shoulder and took his legs from under him, causing him to fall to the ground. The claimant went back into the shop. The man with the pizza and a companion re-entered the premises and engaged in conversation with the claimant. The claimant emerged again from behind the counter. All four men were by then in the shop and the claimant then returned behind the counter. The claimant emerged a third time. There appeared to have been some reluctance on the part of the man with the pizza to leave. Nicola Meese spoke to the man with the pizza. As the conversation was proceeding between the claimant and two of the group she pushed the claimant away. The man with the pizza and a companion continued to engage in conversation with the claimant. The tribunal received the unchallenged evidence from Nicola Meese that the man had sought an explanation for the treatment that he had received. Prior to the incident the CCTV footage does not portray the man as having acted in a physically aggressive or hostile way.

 

(20)        Though both of these incidents were witnessed by other members of staff they did not report them to the respondent as they were required to do under the respondent's policy. Nicola Meese says she did not report the incident of 18 November 2013 to Jack Caughey as the claimant said he would report it and she did not want to jeopardise her relationship with the claimant. Nor did she subsequently check if the claimant had reported the incident to Jack Caughey.

 

(21)        For her failure to report the incident of 18 November 2013 Jack Caughey administered a verbal warning to Nicola Meese. In so doing he did not follow or apply the statutory procedures or indeed any procedure. There was not any evidence before the tribunal that he did anything in relation to Nicola Hill's failure to report the incident of 4 September 2013.

 

(22)        Having received the report of the two incidents from staff on 1 December and having viewed the CCTV footage Jack Caughey decided that the claimant was guilty of gross misconduct for his violent behaviour and should be dismissed summarily. He delivered a letter of dismissal to the claimant's home on 2 December 2013. The letter stated:-

 

"Dear Ciaran

Unfortunately due to recent incidents involving violence towards customers and abuse of your fellow staff members culminating on your disappearance from work last evening, I have decided to end your employment with Little Italy with immediate effect."

 

Mr Caughey told the tribunal that the letter of dismissal was not correct as alleged abuse of fellow staff members and his disappearance on
1 December 2013 were not factors in his decision to dismiss the claimant even though such assertions are also made in the respondent's response.

 

(23)        The respondent accepts that it did not carry out any of the statutory dismissal procedures and that the dismissal of the claimant was automatically unfair. It also accepts that the dismissal was unfair under the ordinary requirements of unfair dismissal. The respondent failed to conduct a proper investigation, hold a disciplinary meeting, give the claimant a chance to explain his conduct and offer any mitigation and offer a right of appeal.

 

(24)        Whilst accepting that the dismissal of the claimant was both automatically unfair and ordinarily unfair the respondent argues that there should be a 100% deduction in any compensation payable to the claimant by reason of a Polkey deduction or by reason of contributory fault.

 

(25)        The claimant does not assert that the CCTV footage is not accurate nor that it omits any relevant material. In his claim form and in his witness statement the claimant does not provide any information about the incidents of 4 September and 18 November 2013. The claimant was not cross-examined at all and no evidence emerged in relation to the claimant's account of both of these incidents.

 

THE LAW

 

5. (1) Following an unfair dismissal a tribunal may make an award of compensation comprising a basic award and a compensatory award (Article 152 The Employment Rights (Northern Ireland) Order 1996).

 

(2) The basic award of compensation is calculated as set out in Article 153 The Employment Rights (Northern Ireland) Order 1996.

 

(3) Where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce the amount accordingly (Article 156(2) The Employment Rights (Northern Ireland) Order 1996).

 

(4) Where there is an automatically unfair dismissal, because of a breach of the statutory dismissal procedures, the basic award will be a minimum of four weeks' gross pay unless that increase would result in injustice to the employer (Article 154(1A) (1B) The Employment Rights (Northern Ireland) Order 1996).

 

(5) The minimum basic award mandated by Article 154(1A) the Employment Rights (Northern Ireland) Order 1996 is not subject to reduction for contributory fault and should not be reduced or eliminated under Article 154(1B) merely because of the employee's blameworthy conduction. There would otherwise be no sanction on employers for disregarding the statutory procedures where the employee was guilty of serious misconduct. (See Ingram v Bristol Street Parts at paragraphs 33 and 34).

(6) The 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 insofar as that loss is attributable to action taken by the employer (Article 157(1) The Employment Rights (Northern Ireland) Order 1996).

 

(7) Where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of compensatory award by such proportion as it considers just and equitable having regard to that finding (Article 156(6) The Employment Rights (Northern Ireland) Order 1996).

 

(8) Before making any deduction for contributory fault, the tribunal must give the claimant an opportunity to give evidence on the matter ( Mercia Rubber Mouldings Ltd v Lingwood [1974] IRLR 82 and Ferguson v Gateway Training Centre Limited [1991] ICR 658). Further it must specify the behaviour, action or conduct which it is taking into account: see the judgement of Phillips J in Parkers Bakeries Limited v Palmer [1997] IRLR 215, EAT ( Harvey on Industrial Relations and Employment Law D1 [2711]).

 

(9) In relation to the application of contributory fault to a basic award and the compensatory award the tribunal is given a discretion to exercise. This led the Northern Ireland Court of Appeal in G McFall and Co Limited v Curran [1981] IRLR 455 to take the view that the same reduction must be made in respect of both awards. ... ( Harvey on Industrial Relations and Employment Law D1 [2712]).

 

(10) In Steen v ASP Packaging Limited UK [EAT/0023/13] (17 July 2013, unreported) (Langstaff P presiding) the EAT stated that the application of those sections to any question of compensation arising from a finding of unfair dismissal requires a tribunal to address the following: (1) it must identify the conduct which is said to give rise to possible contributory fault; (2) having identified that it must ask whether that conduct is blameworthy - the answer depends on what the employee actually did or failed to do, which is a matter of fact for the tribunal to establish and which, once established, it is for the tribunal to evaluate; (3) the tribunal must ask for the purposes of [The Employment Rights (Northern Ireland) Order 1996] if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the tribunal moves on to the next question; (4) this is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. It will likely be an error of law if the tribunal simply states its conclusion as to contributory fault and the appropriate deduction from it without dealing with those four matters.

 

However, there is no need to address these matters in any greater length than is necessary to convey the essential reasoning. Of its nature a particular percentage or fraction by which to reduce compensation is not susceptible to precise calculation but the factors which held to establish a particular percentage should be, even briefly, identified. (Harvey on Industrial Relations and Employment Law D1 [2716]).

 

(11)        A reduction for contributory fault may also be made in a case of automatic unfair dismissal: Audere Medical Services Ltd v Sanderson UKEAT/0409/12 (29 May 2013) (HHJ Serota QC presiding) ( Harvey on Industrial Relations and Employment Law D1 [2717 - 2720]).

 

(12)        It is important to recognise that the employee's conduct must be examined in order to determine the extent to which it has caused or contributed to the dismissal and not to its unfairness. So if, for example, the dismissal is merely because of some procedural defect for which the employee cannot be held responsible, his conduct can still be taken into account when assessing the compensation to which he is entitled (see, for example, Jamieson v Aberdeen County Council [1975] IRLR 348) ( Harvey on Industrial Relations and Employment Law D1 [2721]).

 

(13)        Tribunals may take a very broad view of the relevant circumstances when determining the extent of contributory fault. This was the view of NIRC in Maris v Rotherham Corporation [1974] IRLR 147. The following dictum of Sir Hugh Griffiths in that case, although made in the context of a predecessor to the present provision applies equally to [The Employment Rights (Northern Ireland) Order 1996]:-

 

"[The section] brings into consideration all the circumstances surrounding the dismissal, requiring the tribunal to take a broad common sense view of the situation and to decide what, if any, part of the [claimant's] own conduct played in contributing to his dismissal and then in the light of that finding decide, what, if any, reduction should be made in the assessment of this loss." (Harvey on Industrial Relations and Employment Law D1 [2722]).

 

(14) Furthermore, a reduction for contributory fault can be made even where the employee's action is unrelated to the principal reason for the dismissal. ( Harvey on Industrial Relations and Employment Law D1 [2724]).

 

(15) The contributory conduct must be conduct which is 'culpable or blameworthy' and not simply some matter of personality or disposition or unhelpfulness on the part of the employee in dealing with the disciplinary process in which he or she has become involved: Bell v The Governing Body of Grampian Primary School [2007] ALL ER 148. In Bell the EAT stated that, in considering contribution, the burden as a matter of law, is not always on the employer to show by direct evidence from the dismissing officer or the dismissing panel what specific factors were in their minds at the date of the dismissal. As a matter of sheer practicality that evidence may not always be available. ( Harvey on Industrial Relations and Employment Law D1 [2724.01]).

 

(16) The House of Lords in W Devis and Sons Ltd v Atkins [1977] IRLR 314 affirmed that in reducing compensation for contributory fault that it was open to a tribunal to make a reduction of 100%. (Harvey on Industrial Relations and Employment Law D1 [2748).

 

(17) Similarly, in Ingram v Bristol Street Parts [2007] ALL ER 345 the EAT rejected the argument that the Devis principles no longer applied in the context of automatic unfair dismissal for non-compliance with the statutory disciplinary procedures then in force ... . In Ingram the EAT also rejected that the argument that there could not be a finding of 100% contribution where the employer was at fault. Whenever there is a finding of unfair dismissal, it must follow that the employer has not acted appropriately. However, the employee's blameworthy conduct must be considered to determine the extent to which it has caused or contributed to the dismissal, not to the unfairness of the dismissal. Where procedural failings by the employer are causally relevant to the dismissal itself then a finding of 100% contributory is unjustified. In Ingram the EAT upheld the tribunal's finding that there would be no compensatory loss by reason of the 100% contribution. ( Harvey on Industrial Relation and Employment Law D1 [2750]).

 

(18) Even so, as recently emphasised by the EAT in Steen v ASP Packaging Ltd a finding of 100% contributory conduct is an unusual finding, albeit a permissible finding. A tribunal should not simply assume that because there is no other reason for the dismissal therefore 100% contributory fault is appropriate. It may be the case but the percentage might still require to be moderated in the light of what is just and equitable: see Lemonious v Church Commissioners [UKEAT/0253/12] (27 March 2013, unreported) (Langstaff P presiding). ( Harvey on Industrial Relations and Employment Law D1 [2751 - 2760).

 

(19) Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded, for the purposes of Article 130(4)(a) of the 1996 Order as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure (Article 130(A)(2) The Employment Rights (Northern Ireland) Order 1996).

 

(20) In considering whether an employee would still have been dismissed even if a fair procedure had been followed there is no need for an all or nothing decision. If the employment tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment ( Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL).

 

(21) The Polkey reduction has been the subject of a number of decisions since the introduction of the statutory dismissal procedures. The position now appears to be that a dismissal, in breach of the statutory dismissal procedures, cannot be found to be fair on the basis of the Polkey decision. However the Polkey decision can be applied to the issue of remedy and can be the basis of a percentage reduction in compensation, up to 100% to reflect the chance of dismissal even had the statutory dismissal procedures been applied. ( Patricia Dalzell v 1. Roger McIlvenna and 2. Julie McIlvenna Case Reference No: 1744/13).

 

(22) Where the statutory dismissal procedure applies, the procedure was not completed before the proceedings were begun and the non-completion of the statutory procedure was wholly or mainly attributable to a failure by the employer to comply with the requirements of the procedure the tribunal shall increase any award which it makes to the 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% unless there are exceptional circumstances which would make an increase of that percentage unjust or inequitable in which case the tribunal may make no increase or increase at such lesser percentage as it considers just and equitable in all the circumstances (Article 17(3) and (4) The Employment (Northern Ireland) Order 2003).

 

APPLICATION OF THE LAW AND THE FINDING OF FACTS TO THE ISSUES

 

6. (1) The respondent has accepted that it is guilty of having automatically unfairly dismissed the claimant and having also unfairly dismissed the claimant according to the ordinary principles of unfair dismissal.

 

(2) These were important concessions appropriately made. In relation to the statutory disciplinary and dismissal procedures there was a complete failure by the respondent to follow the procedures.

 

(3) Similarly in considering the dismissal according to the ordinary principles applicable the dismissal was procedurally unfair in that the investigation was seriously flawed, ie the claimant was not told of the charge and offered an opportunity to explain his conduct nor was he offered a right of appeal.

 

(4) The tribunal is not persuaded that this failure to follow procedures was a single aberration or arose by reason of the respondent having formed the view that adherence to the requisite procedure was unnecessary due to the nature of the claimant's conduct. It seems to the tribunal that the respondent simply did not abide by or seek to implement the procedures required by law. In so concluding the tribunal had regard to the following matters:-

 

(a)       the complete disregard of the statutory dismissal procedures in relation to the claimant's dismissal, and

 

(b)       the almost complete disregard for the procedures applicable under the ordinary law of unfair dismissal, and

 

(c)        a similar complete absence of procedures in administering a warning to Nicola Meese for her failure to report the incident of 18 November 2013, and

 

(d)       the failure to provide to the claimant a written statement of his main terms and conditions prior to his promotion in October 2013, and

 

(e)       even when the written terms were provided in October 2013 they did not include all the requisite information, including the disciplinary policy.

 

(5) There were other disquieting aspects of the respondent's evidence in this claim including the following:-

 

(a)       In the letter of dismissal the respondent attributed the dismissal not only to the claimant's conduct on 4 September and 18 November but also to abuse of fellow staff members and his departure from work on 1 December 2013. However when giving evidence to the tribunal Jack Caughey said that the alleged abuse of fellow members of staff and his early departure had no part in the decision to dismiss.

 

(b)       The respondent repeated the same reasons for the claimant's dismissal in its response to the claimant's claim despite that not being correct.

 

(c)        The explanation of Nicola Hill that she did not report the incident of 4 September 2013 as she was 'new and did not want to rock the boat' lacks credibility. She had reported to her superior Nicola Meese another incident where the claimant allegedly had intervened in a dispute between members of the public in contravention of the respondent's stated policy. She reported that before 8 September the date Nicola Meese informed Jack Caughey of it. If the incident occurred before 4 September 2013 she was even newer at the job and was apparently prepared to "rock the boat". If it occurred after the incident of 4 September it is very difficult to understand why she would report one incident and not the other.

 

(d)       Nicola Meese's explanation for not reporting the incident of 18 November also raises concerns. Next to Jack Caughey she was the senior person and would be expected to adhere to the respondent's policy of reporting untoward incidents which she failed to do. Her explanation for not doing so was because the claimant was going to do so himself rings somewhat hollow when she failed to check either with Jack Caughey or the claimant whether he had done so or not.

 

(e)       It is difficult to understand why on 1 December 2013 when the claimant left work early citing either family reasons or badgering should cause both Nicola Hill and Nicola Meese to report the incidents of 4 September and 18 November 2013.

 

(6) The respondent has argued that any compensation to which the claimant would be entitled should be reduced by reason of his contributory fault or by reason of the deductions made under the Polkey decision.

 

CONTRIBUTORY FAULT

 

(7) Contributory fault can apply to both the basic award and the compensatory award and in Northern Ireland the percentage reduction in each head of compensation must be the same.

 

(8)           The claimant was given an opportunity to give his account of both the incidents of 4 September and 18 November in his claim form and in his witness statement but failed to do so.

 

(9)           The contributory fault alleged relates only to the two incidences of 4 September and 18 November 2013 captured on CCTV. The respondent's contention is that these two incidents are the sole reason for the claimant's dismissal.

 

(10)        From the observation of the CCTV footage and the evidence of the persons there at the time, who chose to give evidence on the incident Nicola Hill and Nicola Meese, and in the absence of any explanation of the incidents by or on behalf of the claimant it is clear that the conduct of the claimant was blameworthy as it was he who initiated and continued the physical behaviour in both incidents. There is not anything visible in the CCTV footage that would suggest that those on the receiving end of the claimant's physical behaviour were blameworthy in any regard.

 

(11)        The tribunal is satisfied that the claimant's blameworthy conduct caused his dismissal.

 

(12)        Accordingly, it is the tribunal's decision that any compensation to which the claimant would have been entitled, including any uplift in compensation, should be reduced by 100%.

 

POLKEY REDUCTION

 

(13)        In the light of the tribunal's findings of 100% contributory fault it is unnecessary to comment on the Polkey argument. However in deference to the arguments put before us it seems to the tribunal that even had the full statutory dismissal procedures been applied by the respondent the probable outcome is that the claimant would have been dismissed. In those circumstances a 100% reduction under Polkey seems to the tribunal to be justified.

 

(14)        Neither the procedural failures of, nor the disquieting aspects in the evidence of the respondent, either individually or cumulatively, are sufficient to undermine the tribunal's conclusions that the claimant's behaviour on 4 September 2013 and 18 November 2013, as recorded on CCTV, caused his dismissal or that following of appropriate procedures would have resulted, in the respondent not dismissing the claimant.

 

(15)        The claimant is entitled to four weeks' gross pay under Article 154(1A) The Employment Rights (Northern Ireland) Order 1996. The claimant's misconduct is not a ground for reducing that amount in whole or in part.

 

(16)        However the tribunal may exercise its discretion not to make an award under Article 154(1A) if the award would result in injustice to the employer (Article 154(1B) The Employment Rights (Northern Ireland) Order 1996). The tribunal is not satisfied that the respondent has shown that such an award would result in injustice to the respondent.

 

(17)        Accordingly the tribunal awards the claimant £1,470.00 for four weeks' gross pay.

 

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

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 12-16 January 2015; and

28 January 2015, Belfast

 

 

Date decision recorded in register and issued to parties: