Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2488/14

 

 

CLAIMANT: Mark Gribben

 

 

RESPONDENT: Leonard F Jollye (Brookmans Park) Ltd

 

DECISION

The unanimous decision of the tribunal is that the claimant's complaint of unfair dismissal is not well founded and is therefore dismissed.

 

Constitution of Tribunal:

 

President: Miss E McBride CBE

 

Members: Mr S Kearney

Mr J Magennis

 

 

 

Appearances:

 

The claimant was represented by Ms M C Campbell, Barrister-at-Law, instructed by Gillen & Co, Solicitors.

 

The respondent was represented by Mr G Underwood of Personnel Management Services Ltd.

 

 

REASONS

 

The claim and response

 

1. On 27 October 2014, the claimant presented a complaint of unfair dismissal against the respondent. On 21 November 2014, the respondent presented a response accepting that the claimant had been dismissed but denying that his dismissal had been unfair.

 

The issues

 

2. The respondent accepted that it had dismissed the claimant and the claimant accepted, through Ms Campbell, that the statutory dismissal and disciplinary procedure had been followed by the respondent in this case and the tribunal was satisfied that it was. The issues for the tribunal to determine were therefore:-

 

(i) whether the respondent can show the reason for the claimant's dismissal and that it is related to the claimant's conduct;

 

(ii) if so, whether, in the circumstances, including the size and administrative resources of the respondent's undertaking, the respondent acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the claimant; and

 

(iii) the remedy to which the claimant is entitled, if the respondent cannot show the reason for the claimant's dismissal or that it was related to the claimant's conduct or if the tribunal is not satisfied that the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the claimant.

 

Sources of evidence

 

3. The tribunal heard evidence from Mr James Warke, the respondent's UK Retail Director and Mr David Scott, the respondent's Senior Store Manager within the Northern Ireland Region on behalf of the respondent and from the claimant on his own behalf.

 

Direct evidence was given by way of witness statements and each witness was permitted to give additional direct evidence before cross-examination began.

 

The tribunal was provided with an agreed bundle of documents and a separate document containing the claimant's schedule of loss.

 

The tribunal received written and oral submissions from Ms Campbell and oral submissions from Mr Underwood.

 

The tribunal was referred to the following authorities and publications by Ms Campbell:-

 

Rogan -v- South Eastern Health and Social Care Trust (2009) NICA47

British Homes Stores -v- Burchell (1980) ICR303

W Weddel & Co Ltd -v- Tepper (1980) IRLR 96CA

Salford Royal NHS Foundation Trust -v- Roldan (2010) IRLR721 CA

Iceland Frozen Foods -v- Jones (1982) IRLR 439 EAT

Sainsbury's Supermarkets Ltd -v- Hilt (2003) IRLR 23

Linfood Cash and Carry Ltd -v- Thompson (1989) IRLR 235

Post Office -v- Marney (1990) IRLR 170

Harvey on Industrial Relations and Employment Law

Issue 238 page 1518

Tolley's Employment Handbook 25 ^th Edn 2011 p.1159

ACAS Guidance on disciplinary procedures

 

Mr Underwood referred the tribunal to British Home Stores -v- Burchell (1980) ICR303.

 

Relevant facts

 

4. Having considered the evidence, both oral and documentary, and the submissions of Ms Campbell and Mr Underwood, the tribunal found the following relevant facts.

 

4.1 The claimant commenced employment with the respondent on 29 September 2008 and worked as a supervisor in its Banbridge store. He had previously worked as a self-employed joiner and he also ran his own business from home selling parrot cages and toys.

 

4.2 The respondent is a retailer of pet food, livestock and accessories and has 59 retail stores within the United Kingdom, 11 of which are situated in Northern Ireland, including the Banbridge store. The majority of the respondent's stores stock its full range of products, but a small number of stores which have less space do not. The Banbridge store did not stock parrot cages or accessories and those products could be obtained for customers from a neighbouring store or through a direct order from the supplier.

 

4.3 Shortly before 12 June 2014, Mr Warke, the respondent's UK Retail Manager was informed by the Lisburn store manager that a customer in his store, who had been looking for a parrot cage, had told him that the claimant was selling parrot cages and toys through a Facebook page.

 

4.4 Having been given that information, Mr Warke checked and found a Facebook business page on the claimant's Facebook called "Mark's Parrots" which was specifically for the sale of parrot cages and parrot toys. Mr Warke took some screenshots of the Facebook page and met with the claimant on 12 June 2014 to discuss the matter. Mr Warke showed the claimant the screenshot pictures and the claimant accepted that he was operating his own business selling parrot cages and parrot toys from his home via Facebook. Mr Warke made it clear to the claimant that this amounted to a major conflict of interest with his employment and that he would have to stop immediately or face losing his job. The claimant told Mr Warke that he needed his job as he had four children and that he would give it up if it meant losing his job. Mr Warke told the claimant that he would take that on board but that if he did not stop he could lose his job. Shortly after the meeting, Mr Warke checked the claimant's Facebook page and was satisfied that the relevant page had been taken down. On 19 June 2014 Mr Warke sent the claimant a letter of 'concern' in the following terms:-

 

"Dear Mark

 

I write further to our recent meeting and confirm that I have decided to issue you with a letter of concern as you have been running your own business via Facebook selling bird cages, parrot toys etc, which is considered a conflict of interest.

 

I understand that as a result of our meeting you have ceased operating your business and removed the information from your Facebook account.

 

However, I confirm that should there be any evidence that you continue to operate the business in the future, the company may consider disciplinary action, which may affect your employment.

 

If you wish to discuss this matter further, please do not hesitate to contact me.

 

Yours sincerely

 

 

Jim Warke

Retail Manager"

 

The customer complaint

 

4.5 On 30 July 2014 Mr Warke received an e-mail from Sarah Bailey, an Executive Assistant at the respondent's Head Office in England, to whom all telephone complaints are directed, in the following terms:-

 

"Subject: Customer complaint in Banbridge

 

Hi Jim

 

I have just taken a call from a customer who does not want to be contacted but his name is Jamie Miller.

 

His wife visited the store to purchase a bird cage and was being served by Mark.

 

Mark told the customer that he sells bird cages at his house and that she should come there.

 

The customer went to his house and noticed that he was selling parrot toys and also he had weighing scales and was obviously selling bird seed and he also had shelving which matched Jollyes she walked out as she thought it was very unprofessional that he was promoting his own business while working at the store.

 

Kind Regards

 

 

Sarah Bailey

Executive Assistant".

 

4.6 Mr Warke was aware that the claimant was the only member of staff in the Banbridge store whose first name was Mark and that Ms Bailey would not have known that or the name of any customers. He asked Ms Bailey to provide him with a statement setting out as best she could remember exactly what was said during the telephone call and later that day Ms Bailey e-mailed her statement to Mr Warke in the following terms:-

 

"30/7/2014

 

Complaint against Mark at Banbridge

 

I received a call today around 9am from a customer who wanted to make a complaint. I initially asked him his name and he said he did not want to give his name but then said it was Jamie Miller.

 

I asked the customer what his complaint was and he replied with the following:

 

"My wife visited the store in Banbridge as she wanted to purchase a cage and she was being served by Mark.

 

Mark said that he sold cages at home and that she should come there.

 

Jamie Millers wife then visited Marks home and saw that he sold cages but also saw that he was selling parrot toys. He also had weighing scales what (sic) she understood was for the use (sic) birdseed.

 

The customer said that his wife had observed that Mark had the same shelving that is used in the Jollyes stores"

 

Mr Miller said that his wife thought it was unprofessional that Mark was promoting his own business while working at Jollyes and also said that this had also happened to their neighbour and that Mark had advertised on Facebook.

 

I asked the customer for his telephone number but he did not want to leave this."

 

The claimant's suspension

 

4.7 Mr Warke considered that, if correct, this complaint was a potentially serious matter because, on the face of it, it indicated that a potential customer of the respondent had been directed to a private sale by the claimant after the claimant had agreed to close his business on 12 June 2014. The claimant was therefore suspended by Mr Alex Livingston, the Banbridge store manager, on 30 July 2014 at the direction of Mr Warke pending an investigation. On that same date the claimant was given a letter confirming his suspension which made it clear that his suspension did not imply guilt.

 

The disciplinary hearing

 

4.8 By letter dated 31 July 2014 the claimant was informed that the investigation had been completed and that he was required to attend a formal disciplinary hearing on Wednesday 6 August 2014 at 10.00 a.m. at the Banbridge store at which the following matters would be considered:-

 

"a) Operating a personal business, in direct competition with the company.

 

b) Whether you approached a potential Jollyes customer on company premises, with a view to promoting your own business, denying the company potential sales."

 

Although the letter did not specify whether the matters were alleged to have taken place before or after 12 June 2014, Mr Scott and Mr Warke both accepted, under cross-examination by Ms Campbell, that both matters related to the period after 12 June 2014 when Mr Warke had made it clear to the claimant that he would have to stop running his own business or risk losing his job.

 

The claimant was also informed that:-

 

"Should the company have a belief that either of the above to be correct following the disciplinary hearing, your continued employment will be a consideration."

 

A copy of the transcript of the complaint and a copy of Mr Warke's letter of "concern" of 19 June 2014 were sent with the letter.

 

In addition the claimant was informed:-

 

"You may, if you wish, be accompanied at this meeting by either another member of staff or a bona fide trade union representative. If however, your representative is unable to make this meeting we will re-arrange it so that it will be held within five working days of the original meeting."

 

Although the letter had Mr Warke's name on it, it had been issued by personnel.

 

4.9 The claimant failed to either attend the disciplinary hearing on 6 August 2014 or to contact the respondent to give any reason for his non attendance or to request that the hearing date be rearranged. Nevertheless, the respondent did not proceed with the disciplinary hearing in the claimant's absence and rearranged it for 12 August 2014 to give the claimant a further opportunity to give oral representation before a decision was made. The claimant was reminded that it would take place at the Banbridge store and that he could if he wished be accompanied at the meeting by either a member of staff or a 'bona fide' trade union representative.

 

4.10 The claimant attended the rearranged disciplinary hearing on 12 August 2014 at the Banbridge store on his own. It was conducted by Mr Scott, the Senior Store Manager within the Northern Ireland Region. It took place in the staff canteen and the tribunal was satisfied that the doors were shut and that no one could hear what was being discussed. Mr Scott made notes at the disciplinary hearing and during his subsequent investigation and those notes were provided to the tribunal.

 

4.11 Prior to the disciplinary hearing Mr Warke told Mr Scott about his meeting with the claimant on 12 June 2014 and the letter of "concern" he had sent to the claimant on 19 June 2014. Mr Warke also told Mr Scott that he had asked Mr Livingston, the claimant's manager, if the claimant had made any comment when he was suspending him and that Mr Livingston had indicated that the claimant had stated that he was clearing out stock. Mr Scott had also spoken to Ms Bailey who had taken the customer complaint call and she informed him that the call was a routine call, that the contents of her statement were correct as she remembered the call and that she had written her statement of the call on the same day, shortly after she received the call. In addition Mr Scott was provided with copies of:-

 

(i) Mr Warke's letter of "concern" dated 19 June 2014;

 

(ii) Sarah Bailey's statement of 30 July 2014 setting out the complaint;

 

(iii) Mr Livingston's letter of 30 July 2014 suspending the claimant;

 

(iv) the respondent's letter of 31 July 2014 requiring the claimant to attend a disciplinary hearing on 6 August; and

 

(v) the respondent's letter of 6 August 2014 requiring the claimant to attend a further disciplinary hearing on 12 August 2014 as he had failed to attend the disciplinary hearing on 6 August 2014.

 

4.12 At the outset of the disciplinary hearing the claimant indicated that he felt the complaint was an in-house set up. Mr Scott checked with the claimant and the claimant confirmed that he had admitted to Mr Warke that he had been running his own business selling parrot cages and toys through Facebook, that he knew it created a conflict and that he had been told by Mr Warke to close it down. The claimant stated that he had closed it down on the same day Mr Warke had told him to because he had four children and needed his job. The claimant also confirmed that he had received the letter of "concern" from Mr Warke and he stated that he had complied with it.

 

4.13 Mr Scott then referred the claimant to the complaint Ms Bailey had received from a Jamie Miller on behalf of his wife on 30 July 2014. The claimant told Mr Scott that he thought the name Jamie Miller looked familiar. He therefore looked through his Facebook and had found a message from Jamie Miller which stated that his girlfriend had been told that the claimant was the person to approach for a cage for an African Grey. The claimant stated that when he looked into the account it had been deleted and that the only thing remaining was a name and a picture of a Miller beer bottle. Mr Scott asked the claimant if he had any evidence of the Jamie Miller message or a screenshot to which the claimant replied that he had not.

 

4.14 Mr Scott then went through the detailed allegations which Ms Bailey had set out in her statement on 30 July 2014 and gave the claimant the opportunity to respond to all of them. The claimant denied that he had ever invited or directed an in-store customer to his home. He also denied that anyone had been to his home since Mr Warke had told him to stop running his business. Mr Scott asked the claimant if he had been actively pushing his business after he had been told to stop at the meeting with Mr Warke on 12 June 2014 or if he had just been clearing out stock, both of which the claimant denied.

 

4.15 Mr Scott informed the claimant that his manager, Mr Livingston, had indicated that the claimant had told him that he was simply clearing out stock when he was suspending him. The claimant denied having said that. The claimant also denied that he had ever directed a customer towards his own business during their visit to the store.

 

4.16 Mr Scott asked the claimant if Mr Livingston, the Banbridge store manager, knew that he had been operating his business as a side line. The claimant responded that although he had told Mr Warke that Mr Livingston did not know, Mr Livingston had known for at least a couple of months. Mr Scott then asked the claimant how long his business had been set up to which the claimant replied "four to six months".

 

4.17 Mr Scott then gave the claimant the opportunity to add anything else he wished to. The claimant stated that Mr Livingston did not like him and that he felt he had been badly set up so that Johnny could walk into his job. The claimant also stated that he felt there had been scheming behind his back while he was on a week's holiday. In addition the claimant stated that during the week leading up to the telephone complaint on 30 July 2014, although he had stayed for an extra hour one night Mr Livingston had refused to let him leave an hour earlier another night as he had not had his overtime authorised. The claimant further told Mr Scott that this had made him angry and that he had told Judith, a co-employee, that he was going to write a letter to Mr Warke to let him know what was going on in the Banbridge store and it was after that that the complaint had been made.

 

4.18 Following the disciplinary hearing, Mr Scott spoke with three members of staff from the Banbridge store; Johnny, Jenna and Judith and asked them two questions:-

 

The first question was:-

 

"Did you know Mark (the claimant) was operating a business selling bird cages and accessories outside of work?

 

In response to that question:

 

(a) Johnny stated that he had seen it on Facebook a couple of months previously;

 

(b) Jenna stated that if anyone had come in to the Banbridge store looking for a parrot cage and accessories, they told them that they didn't sell them but that they knew a guy who did and, if the claimant was in store, they would send them over to him;

 

(c) Judith stated that she and everyone else knew that the claimant had been operating his own business but that the site had been closed down and there had been no activity since.

 

The second question was:-

 

"Did you ever witness or hear Mark pushing his business within Jollyes Banbridge?"

 

In response to that question:

 

(a) Johnny stated that he had not;

 

(b) Jenna stated that she had not and that it only came about if a customer asked and they would be sent over to him; and

 

(c) Judith stated that she had never seen the claimant approach customers in store regarding pushing his own business.

 

4.19 There was no evidence in Mr Scott's witness statement of having spoken to Mr Livingston about any of the matters raised by the claimant including the claimant's allegation that the complaint may have been an in house set up and that Mr Livingston, the Banbridge Manager, had been involved in it.

 

4.20 Under cross-examination by Ms Campbell, Mr Scott initially accepted that he had not spoken to Mr Livingston before reaching his decision to dismiss the claimant and he gave three reasons for not doing so:-

 

(i) he felt the complaint was genuine;

 

(ii) he had no reason to believe that other members of staff had been involved; and

 

(iii) the claimant had given him no evidence as to why Mr Livingston would have been involved in setting him up.

 

4.21 Under further cross-examination, Mr Scott changed his evidence and stated that he did investigate the claimant's "set up case" when he contacted Mr Livingston to inform him that he was still in charge of the store. Mr Scott stated that at that stage he informed Mr Livingston that the claimant had stated that the complaint was an in house set up to get Johnny up to supervisor level, which Mr Livingston categorically denied.

 

4.22 The tribunal agreed with Ms Campbell that if Mr Scott had spoken to Mr Livingston as part of his investigation before deciding to dismiss the claimant, it would have expected him to:-

 

(i) have made a note of it as he did having spoken with the other three members of staff;

 

(ii) have referred to it in his letter of dismissal particularly as he had referred to Mr Livingston's recollection of what the claimant had said when he was suspending him and as he had referred to the responses of the other members of staff to his questions; and/or

 

(iii) have referred to it in his witness statement.

 

The fact that he did not do so led the tribunal to conclude that while Mr Scott may have spoken to Mr Livingston about the claimant's allegation after his dismissal, he did not do so before reaching his decision to dismiss the claimant.

 

4.23 By letter dated 19 August 2014 Mr Scott informed the claimant that having considered all the matters set out in his letter he believed that the customer complaint had been genuine and that the claimant had suggested to a potential customer of the respondent that they could buy the bird cage directly from him, which was in direct conflict with the core of his role within the respondent and was clearly gross misconduct. The matters Mr Scott considered were:-

 

(i) the fact that the claimant had previously been made aware that the selling of bird cages and accessories privately was in conflict with his role with the respondent and was to cease with immediate effect as there was a clear conflict;

 

(ii) the fact that the letter requiring the claimant to attend the disciplinary hearing had pointed out to the claimant that if Mr Scott believed the offence had occurred then it could be considered to be gross misconduct;

 

(iii) the claimant's denial of the complaint at the disciplinary hearing and his assertions that he had ceased to sell cages once Mr Warke had told him to stop and that the complaint was a conspiracy (set up) by Mr Livingston and the staff at the store, one reason being that Johnny wanted the claimant's job;

 

(iv) the fact that the claimant had no evidence of a message he claimed to have received from Jamie Miller that his girlfriend had told him the claimant was the person to approach for an African Grey;

 

(v) the fact that Ms Bailey, in Head Office, who took the complaint had absolutely no reason to believe other than that the complaint was genuine in the way it was relayed to her;

 

(vi) Mr Livingston's recollection that when giving the claimant the suspension letter, the claimant had commented that he was simply clearing stock after he had been told to stop by Mr Warke; and

 

(vii) the fact that other members of staff were aware of the claimant selling parrot cages and accessories.

 

4.24 In relation to penalty Mr Scott informed the claimant:-

 

"In considering the penalty to apply, ie whether in the circumstances to issue a final written warning, I believe this complaint followed the meeting with Jim Warke where the issue could not have been made clearer. In such circumstances I do not feel it appropriate to issue a final warning.

 

Therefore my decision is to terminate you (sic) employment with immediate effect today 19 August 2014 for the above reasons."

 

Mr Scott also informed the claimant that he had a right of appeal within five working days.

 

The appeal hearing

 

4.25 By letter dated 22 August 2014 the claimant requested an appeal. It took place on 5 September 2014 before Mr Warke, the UK Retail Director. The claimant attended on his own although he had been informed that he could, if he wished, be accompanied at the meeting by either another member of staff or a 'bona fide' trade union representative and that the meeting could be rearranged within a five day period, if his representative was unable to attend on that date. Mr Warke made notes at the appeal hearing and during his subsequent investigation and those notes were provided to the tribunal.

 

4.26 Prior to the appeal hearing Mr Warke read Mr Scott's notes of the disciplinary hearing and his letter of dismissal. Mr Warke noted that one of the matters the claimant had raised at his disciplinary hearing was a conspiracy by staff members. He therefore spoke again to Ms Bailey who had taken the customer complaint and she confirmed that she had absolutely no doubt that the call was genuine.

 

4.27 At the outset of the appeal hearing Mr Warke informed the claimant that he would listen to everything the claimant had to say, that he would investigate everything right from the start and that he would speak to everyone he needed to before drawing his conclusion.

 

4.28 Mr Warke then asked the claimant what his grounds of appeal were. The claimant stated that he was appealing on the grounds that the complaint was a fabrication, that he did not know who had done it but that someone was setting him up and that it may have been Johnny, a co-employee, or Mr Livingston, his manager, because Johnny had been after his job and because his relationship with Mr Livingston had not been very good and they had had a few run ins.

 

4.29 Although Mr Warke is the UK Retail Director, he is based in Northern Ireland and still operates as the Regional Manager for Northern Ireland and visits the Northern Ireland stores regularly. It had never come to his attention that there was any tension in the Banbridge store. Mr Warke pointed this out to the claimant and asked him why he had never made it known to him or why he had never raised a grievance to which the claimant replied that he was not the type of person to complain.

 

4.30 In response to Mr Warke, the claimant confirmed that he had admitted running his own business selling bird cages and accessories through Facebook at his meeting with Mr Warke on 12 June 2014. The claimant also confirmed that Mr Warke had told him that that selling bird cages and accessories was a conflict of interest and that it must stop immediately. In addition the claimant confirmed that he had told Mr Warke that he had children and needed his job and that Mr Warke had told him that he would take that onboard, give him the benefit of the doubt and issue him with a letter of "concern" making it clear that he must stop his business or risk losing his job.

 

4.31 In relation to the customer complaint Mr Warke asked the claimant to tell him about Jamie Miller as the customer complaint had been made by a person who gave his name as Jamie Miller and who stated that his wife had visited the Banbridge store to purchase a cage and had been told by a person called Mark that he sold cages at his home and that she should go to his home. The claimant stated that Jamie Miller was not a contact he had made in store but that he had been contacted by Jamie Miller through Facebook about a parrot cage. The claimant then showed Mr Warke a screenshot of Jamie Miller's Facebook account with only his name and a picture of a Miller beer bottle remaining.

 

4.32 Mr Warke asked the claimant if Jamie Miller had contacted him about purchasing a parrot case after their meeting on 12 June 2014 when Mr Warke had told the claimant to stop selling. The claimant confirmed that he had. Mr Warke then asked the claimant what he had said in response. The claimant replied that he had told Jamie Miller that he could not sell him a cage. Mr Warke then asked the claimant how he had told Jamie Miller that and the claimant replied that he had told Jamie Miller through a Facebook message.

 

4.33 There was a clear dispute between the claimant and Mr Warke as to what happened next at the appeal hearing. Mr Warke's evidence was that:-

 

(i) he asked the claimant if he had a message trail to which the claimant replied that he had not because the user (Jamie Miller) had closed his account;

 

(ii) he knew that the message trail would still be there even if the user (Jamie Miller) no longer had an account unless it had been specifically deleted by the claimant;

 

(iii) he therefore asked the claimant to load his messages up on to his phone and to look for the messages;

 

(iv) the claimant spent up to five minutes going through a long trail of messages from lots of other people which indicated to Mr Warke that the messages had not been deleted; but

 

(v) the claimant was unable to show him the message he claimed to have received from Jamie Miller after 12 June 2014 about purchasing a parrot cage or his reply that he could not sell him a parrot case.

 

The claimant's evidence was that at the appeal hearing:-

 

(i) he indicated to Mr Warke that he had received a message via Facebook from someone called Jamie Miller;

 

(ii) he had his phone present and offered Mr Warke the opportunity to look at the messages, ie from and to Jamie Miller, stating that he had nothing against him looking; but

 

(iii) Mr Warke declined to look saying "I don't want to look at your private messages".

 

4.34 In determining whose evidence to accept, the tribunal concluded, having considered all the evidence and submissions that while it found Mr Warke's overall evidence to be clear, consistent and credible, it had very serious concerns about the claimant's credibility in light of the inconsistent, contradictory, evasive, misleading and implausible nature of his evidence on occasions. A number of examples are set out below.

 

4.35 (i) On 12 June 2014 the claimant told Mr Warke that Mr Livingston, his

manager, did not know that he was running a business selling parrot cages and accessories while working for the respondent;

 

(ii) on 12 August 2014 the claimant told Mr Scott at his disciplinary hearing that Mr Livingston had known about his business for at least a couple of months;

 

(iii) in his witness statement the claimant's evidence was that Mr Livingston had known about his business since he commenced employment with the respondent in 2008.

 

4.36 (i) On 12 August 2014 the claimant told Mr Scott at his disciplinary

hearing that he had been operating his business selling parrot cages and accessories for four to six months;

 

(ii) in his witness statement the claimant's evidence was that he had been running his business throughout his employment with the respondent ie since 2008;

 

(iii) when the inconsistency was pointed out to the claimant under cross-examination by Mr Underwood, the claimant replied that when he told Mr Scott that he had been operating his business for four to six months, he was referring to Facebook. However, the claimant did not make this clear to Mr Scott during the disciplinary hearing. Nor did he make this distinction in his witness statement or in his oral evidence to the tribunal before cross-examination commenced.

 

4.37 The claimant's statement to Mr Warke at his appeal hearing on 5 September 2014 that he never sold anything to anyone who was a customer of the respondent and his evidence, under re-examination, that staff only sent customers, who wanted to buy parrot cages and accessories, to him in store so that he could try to have them ordered from the supplier was inconsistent with the information provided by other members of staff, namely Judith and Jenna, to Mr Warke during his investigation. The tribunal considered that both Judith and Jenna appeared to have been supportive of the claimant in their responses to Mr Warke and to have had no axe to grind against him. Judith had indicated, in response to questions from Mr Warke, that when customers came in to the Banbridge store looking to buy parrot cages or accessories which were not stocked, the staff sent those customers to the claimant who arranged for them to go to his home to buy them. Jenna indicated, in response to Mr Warke's questions, that the staff sent customers who were looking for parrot cages and accessories to the claimant, he would talk to them and she thought they would go to his home at some point to buy the item.

 

4.38 (i) At the disciplinary hearing on 12 August 2014 Mr Scott noted, and the

claimant did not dispute, that he had told Mr Scott that he had received a Facebook message from Jamie Miller looking to buy a parrot cage. He did not tell Mr Scott that he responded to that message;

 

(ii) at the appeal hearing on 5 September 2014 Mr Warke noted that the claimant had indicated that he had received a message via Facebook from Jamie Miller and that he had responded via a Facebook message that he could not sell him a cage;

 

(iii) at paragraph 21 of the claimant's witness statement the claimant's evidence was that "someone called Jamie Miller had contacted me via Facebook but I never responded";

 

(iv) under cross-examination by Mr Underwood the claimant confirmed that Jamie Miller had approached him about buying a parrot cage through a Facebook message and that he had responded that he was "no longer doing cages";

 

(v) under further cross-examination the claimant again confirmed that Jamie Miller had contacted him through Facebook and that he had responded that he couldn't sell him a cage;

 

(vi) under further cross-examination the claimant changed his evidence and stated that although Jamie Miller had contacted him he did not respond because at that point he had been told to stop selling;

 

(vii) under further cross-examination the claimant changed his evidence again and accepted that he had received a message from Jamie Miller about buying a parrot cage and that he had responded through Facebook that he couldn't sell him a cage;

 

(viii) under further cross-examination the claimant indicated that he had responded when he stated that although he could not upload the entire Facebook messages on his phone, because of lack of Wi-Fi on the respondent's premises, the last comment refusing to sell Jamie Miller the cage did show up on his phone;

 

(ix) under further cross-examination on the second day of the hearing the claimant changed his evidence again and stated on a number of occasions that the evidence he had given at paragraph 21 of his witness statement that he never responded to Jamie Miller's Facebook message was correct, before changing his evidence again and indicating that he had responded and had told Jamie Miller that he was no longer doing cages;

4.39 (i) At the appeal hearing on 5 September 2014 Mr Warke noted that the

claimant had indicated that Jamie Miller had contacted him about a parrot cage after Mr Warke had told him to stop selling parrot cages and accessories at their meeting on 12 June 2014;

 

(ii) under cross-examination by Mr Underwood the claimant initially confirmed that he had received the message from Jamie Miller about a parrot cage after 12 June 2014;

 

(iii) under further cross-examination the claimant changed his evidence and denied that Jamie Miller had contacted him about a parrot cage after 12 June and stated that Jamie Miller had contacted him "long before that and he repeatedly, this guy, it was a message trail with him repeatedly asking me to sell him this cage. This kept going on and on and on right up until the week I was dismissed.";

 

(iv) under further cross-examination the claimant continued to deny that Jamie Miller had contacted him after his meeting with Jim Warke on 12 June 2014;

 

(v) under further cross-examination the claimant changed his evidence again and accepted in answer to three questions that Jamie Miller had contacted him after 12 June 2014;

 

4.40 (i) In light of the claimant's evidence referred to at sub paragraph (iii)

above, that Jamie Miller had contacted him long before 12 June 2014, Mr Underwood asked the claimant a number of questions relating to whether the message trail from Jamie Miller went back before Mr Warke had told him to stop selling on 12 June 2014. The claimant's replies varied from:-

 

(a) he was not sure how far back the messages went; to

(b) it could have and that he was nearly surely it did; to

 

(c) it did; to

 

(d) denying that he had previously suggested that there had been a series of messages from Jamie Miller that had commenced prior to 12 June 2014; to

 

(e) he was not exactly sure when the message trail from Jamie Miller did start.

 

4.41 (i) the tribunal was satisfied that the explanation the claimant gave

Mr Scott at his disciplinary hearing for having no evidence of Jamie Miller's Facebook message about buying a parrot cage from him was because Jamie Miller's Facebook account had been deleted;

 

(ii) the tribunal was satisfied that the claimant initially gave Mr Warke that same explanation at his appeal hearing;

 

(iii) the tribunal was satisfied that this explanation was both incorrect and misleading in view of the claimant's acceptance under cross-examination that there was a difference between a Facebook message trail and a Facebook account being closed and that the closing of an account did not affect the message trail and that he had still the message trail.

 

4.42 (i) At paragraph 25 of his witness statement, dated 9 January 2015, the

claimant's evidence in relation to mitigation of loss was:-

 

"With regards to looking for work now, I felt that it would look bad upon me to apply for any job out there as how could I possibly cover the question "last place of work" with a dismissal against me. Therefore I was in a position to get a temporary loan from my mother who had received inheritance from the passing of my Granda. The money which I received I went to auctions buying old furniture and fixing up to try and sell on to make a few pound to help my wife towards any bills and upkeep of the house. This has by no means been an easy period of my life.";

 

(ii) on the first day of the hearing on 15 January 2015 the claimant provided a document entitled "Draft Schedule of Loss" in which a figure of £1,599 had been inserted in respect of income earned by the claimant between dismissal and the date of the hearing on 15 January 2015;

 

(iii) The claimant was permitted to give direct oral evidence as to how the figure of £1,599 was made up as it was not in his witness statement or in the schedule of loss. His evidence was that it was made up of:-

 

(a) £1,040 he had earned from selling the old furniture he had bought at auctions and fixed up; and

 

(b) £559 he had earned working for a cleaning company on a part-time self employed basis during December 2014 and up to the date of hearing in January;

 

(iv) in response to a question from Ms Campbell, his own counsel, as to what attempts he had made to obtain other work, the claimant's evidence was that he had tried unsuccessfully to get work as a joiner (which was his trade) because there was no longer any work in joinery;

 

(v) under cross-examination on the second day of the hearing on 28 January 2015, when the claimant was asked by Mr Underwood about his attempts to obtain other work, his evidence changed and was that he and his wife had set up their own cleaning business "three weeks ago" and that it had been registered with the Tax Office and that he was working in it on a full-time basis;

 

(vi) when Mr Underwood pointed out to the claimant that although on his own evidence he must have started the cleaning business with his wife before the schedule of loss had been completed by him on 15 January 2015, he did not refer to this new business in it, the claimant changed his evidence and stated that his cleaning business had been started after the first day of hearing on 15 January 2015. When Mr Underwood pointed out to the claimant that it was he who had stated on 28 January 2015 that he had started this business three weeks ago, the claimant replied that "was a figure of speech".

 

4.43 (i) Apart from the schedule of loss which was provided on the morning of

the first day of hearing on 15 January 2015, no documents had been provided to the respondent in relation to the claimant's earnings from buying and selling furniture or from working part time on a self-employed basis for a cleaning company;

 

(ii) under cross-examination the claimant initially stated that he had no documentation because it was self-employed work;

 

(iii) under further cross-examination the claimant explained that he had no paperwork in respect of:-

 

(a) buying and selling furniture because he was self-employed and "never kept a track of what was being sold because it was second hand goods"; and

 

(b) income from working part-time on a self-employed basis for a cleaning company because he was "paid cash";

 

(iv) when Mr Underwood pointed out to the claimant that an Order for Discovery had been made in relation to his mitigation of loss, the claimant changed his evidence and stated that, "I kept a record myself of anything I did have coming in";

 

(v) in response to a question from the President in relation to tax returns, the claimant stated that his wife kept the records for tax return purposes at home;

 

(vi) in response to a further question from the President the claimant confirmed that his wife kept the records in a book at home which he later clarified as being her diary;

 

(vii) in response to a further question from the President the claimant's evidence was that he had looked at his wife's diary and that she had recorded the claimant's dates and hours of work with the cleaning company together with the number of items of furniture that had been bought by the claimant, sold by the claimant and the prices it had been sold for. The claimant later changed his evidence and stated that his wife's diary only had information in relation to the items of furniture he sold each week but not how many items he had bought or what he had paid for them;

 

(viii) in light of that evidence and the Order for Discovery the President directed that Mr Underwood should be given the opportunity to see the diary entries before completing his cross-examination. The claimant indicated that his wife was at the tribunal and although she had her diary with her on the first day of hearing he was not sure if she had it with her on the second day. The President therefore asked Ms Campbell if, in the absence of her instructing solicitor, she could check with the claimant's wife if she had her diary with her. Having had the opportunity to speak to the claimant's wife, Ms Campbell returned to the tribunal and stated that the claimant's wife had indicated that she did not have details of the amount earned by the claimant through the sale of furniture.

 

The tribunal was satisfied that although the claimant told the tribunal that his wife had information about the furniture he sold in her diary, he knew all along that there was no such information in her diary and, at best, misled the tribunal not thinking that the tribunal would ask for the diary to be produced.

 

4.44 (i) The claimant made no reference to the lack of Wi-Fi in the Banbridge

or Lisburn stores at either the disciplinary hearing, the appeal hearing or in his witness statement;

 

(ii) the claimant introduced the lack of Wi-Fi for the first time in the direct oral evidence he gave to the tribunal prior to the commencement of his cross-examination and stated that it prevented him loading up the full messages on his phone;

 

(iii) however, under cross-examination it transpired that the lack of Wi-Fi was irrelevant and misleading. That was because of the claimant's evidence that he could upload the important part of his message to Jamie Miller telling him that he could not sell him a cage which the claimant believed was evidence which would have cleared him.

 

4.45 In relation to the disputed evidence as to whether the claimant was unable to locate any messages from or to Jamie Miller or whether Mr Warke had refused to look at the screenshots which the claimant had offered to let him see, the tribunal considered that:-

 

(i) it is inconceivable that the claimant, who had worked in the Banbridge store since 2008 and who had been informed in advance that the disciplinary hearing would take place in the Banbridge store, would not have known that the Banbridge store did not have Wi-Fi and would not therefore have downloaded any message which supported him and brought it to the disciplinary hearing;

 

(ii) alternatively if the claimant had not been aware that the Banbridge store had no Wi-Fi or that the canteen in the Banbridge store, where the disciplinary hearing was held, had no Wi-Fi, it is strange, if his evidence that he offered to show Mr Warke the screenshots of the messages is correct, that he did not make the same offer to Mr Scott at the disciplinary hearing instead of telling him that he had no evidence because the Jamie Miller account had been deleted;

 

(iii) in light of what had happened in Banbridge, it is inconceivable that the claimant would not have checked whether the Lisburn store, which he had been told in advance was where his appeal hearing would take place, had Wi-Fi before going to the appeal hearing particularly if he had messages which he believed would have cleared him or if he had been unable to check about Wi-Fi that he would not have downloaded the relevant messages and taken them with him in hard copy, just in case there was no Wi-Fi;

 

(iv) if the claimant's evidence that Mr Warke declined to look at the relevant screenshots which contained sufficient evidence to clear the claimant is correct, it is inconceivable that the claimant would not have made more of an effort to try to ensure that Mr Warke looked at them. Alternatively it is inconceivable that the claimant, particularly as on his own evidence he could not afford to lose his job because he had four children, would not have asked Mr Warke to delay making any decision until he had the opportunity to download and provide a hard copy to him, or that he would not have provided a copy anyway. It is also inconceivable that he would not have brought a hard copy to the tribunal to corroborate his evidence that the contact between him and Jamie Miller after 12 June 2014 had been via Facebook and that he had told Jamie Miller that he could not sell him a cage.

 

4.46 Ms Campbell submitted that as the claimant himself had raised the existence of a message trail he presumably would not have done so if he had anything to hide. In light of the fact that the claimant had given evidence that his wife had details of his furniture sales in her diary when he knew that she did not, as set out at paragraph 4.43 above, the tribunal did not consider that it would be appropriate to presume from the fact that the claimant himself raised the existence of a message trail that it actually existed.

 

4.47 The tribunal also found it unlikely that having asked the claimant to load up his messages on his phone, which the claimant accepted under cross-examination he had, that Mr Warke would then decline to look at the messages on the ground that they were private.

 

4.48 The tribunal therefore preferred Mr Warke's evidence that he asked the claimant if he had a message trail to which the claimant replied that he had not because the user Jamie Miller had closed down his account. Mr Warke, knowing that that the message trail would still be there even if the user no longer had an account unless it had been specifically deleted by the claimant, asked the claimant to load his messages up on to his telephone and to look for the message trail from Jamie Miller. The claimant spent up to five minutes going through a long trail of messages from lots of other people which indicated to Mr Warke that the messages had not been deleted but the claimant was unable to locate the messages he claimed to have received from Jamie Miller after 12 June 2014 about purchasing a parrot cage and his reply that he could not sell him a parrot cage.

4.49 Mr Warke then gave the claimant the opportunity to address to Mr Livingston's comment that the claimant had stated at the time of his suspension that he was just clearing out stock, which the claimant denied.

 

4.50 Mr Warke then gave the claimant the opportunity to address the fact that the complaint had referred to the claimant having told a customer to the Banbridge store who wanted to purchase a cage that he sold cages at home and that she should go to his home. The claimant denied that he had ever sold anything to anyone who had been a customer of the respondent and that he had only sold to people through Facebook.

 

4.51 Mr Warke then gave the claimant the opportunity to address the fact that staff had stated that customers had been sent to him. The claimant replied that that may have been the case but it had never happened when he was there. Mr Warke gave the claimant the opportunity to explain what he did when a customer to the store wanted to buy bird products which the Banbridge store did not stock and which the claimant claimed Mr Livingston, the manager, would not bring in. The claimant explained that he tried to place a special order for the products but that he never directed any customer of the respondent to his own business. The claimant repeated that he had not sold any cages or accessories after his meeting with Mr Warke on 12 June 2014 and that he had been set up by Jonny who wanted his job or by Mr Livingston who always blamed him for the warning he had been given four years previously and because they had fallen out recently over overtime following which the claimant had made a comment which Mr Livingston did not like.

 

4.52 Mr Warke then summarised the claimant's position as follows:-

 

"You received a message from a Jamie Miller through Facebook asking to buy a bird cage, you refused to sell one of the cages you had in-stock at your house as you'd been asked to stop selling by me. You can't find the message trail. A complaint was received at Head Office saying you tried to sell Jamie Miller's wife a cage which you deny. You are claiming that either Alex (Mr Livingston) or Johnny or possibly both are setting you up either because Alex has had a four year grudge with you or because Johnny wants your job,"

 

and the claimant confirmed that Mr Warke's summary was correct. Mr Warke then informed the claimant that he had to investigate the matter thoroughly before reaching his decision and he asked the claimant if he had anything else he would like to add and the claimant indicated that he had not.

 

4.53 After the appeal hearing Mr Warke investigated the matter further by speaking to other members of staff namely, Judith, Jenna, Johnny and Mr Livingston. He spoke to Judith first and started by asking her if she was aware that the claimant was selling bird products, cages and toys from his home. Judith confirmed that she was aware and stated that "everyone" knew. Mr Warke asked Judith what happened when a customer came in to the store for a bird cage and she replied that as the Banbridge store did not stock bird cages, the staff sent them to the claimant who arranged to sell the cages to them from his home.

 

4.54 Mr Warke then asked Judith about the claimant and Mr Livingston's relationship. Judith replied that sometimes their relationship was good and other times it was not and she thought, from what she had picked up, that Mr Livingston always had an issue with the claimant over some budgies which were sold and which resulted in Mr Livingston getting a warning before she started to work there.

 

4.55 Mr Warke then asked Judith about the claimant and Johnny's relationship and Judith replied that she could not say that Johnny was good friends with anyone.

 

4.56 Mr Warke spoke to Jenna next and started by asking her if the claimant ever approached customers in store to sell them parrot cages and accessories. Jenna replied that she had never seen the claimant pushing his business in store and that it was more the staff sending customers to the claimant if the store did not have the products they needed. She also stated that the claimant would then talk to the customers and she thought that they would then go to the claimant's home to buy the products.

 

4.57 Mr Warke then asked Jenna how the claimant and Mr Livingston got on. Jenna explained that they had run ins and disagreements sometimes but got on the rest of the time.

 

4.58 Mr Warke then spoke to Johnny and started by telling him that the claimant felt he had been set up through a complaint having been made that he was selling products after Mr Warke had told him to stop and he asked Johnny if he knew anything about the complaint. Johnny replied that he did not know anything about it until Mr Livingston told him that the claimant was away and that it was because he had been selling cages again. Johnny also stated he had nothing to do with it. Mr Warke asked Johnny if he was aware of a Jamie Miller to which Johnny replied that he was not. Mr Warke asked Johnny if he had ever set up a Facebook account under someone else's name to which Johnny replied that he and the claimant had set up a Facebook account to sell DVDs from one time but other than that no. Mr Warke then asked Johnny if he had been involved in any way with setting the claimant up, perhaps because he wanted the claimant's job and Johnny replied that he had not.

 

4.59 Mr Warke then asked Johnny about the claimant and Mr Livingston's relationship in store to which Johnny replied that they got on alright most of the time. Mr Warke then asked Johnny if the claimant had ever sold his products through the store. Johnny replied that he had once sent a woman who had bought a bird from him to the claimant but that was outside of work.

 

4.60 Mr Warke then spoke to Mr Livingston, the Banbridge manager, and started by telling him that the claimant claimed that he had a grudge against him for four years following the warning in relation to selling budgies. Mr Livingston accepted that he should have followed the rules at the time and denied that he had blamed the claimant for the warning he had received or had held a grudge against him. Mr Warke then informed Mr Livingston that the claimant had claimed that he and Mr Livingston had not had a good relationship for some time and that he may have been involved in setting the claimant up. Mr Livingston replied that the claimant struggled in the back office and at times he had to tell the claimant where he had gone wrong but that they did get on. Mr Livingston also stated that when the claimant was off on long term sick leave with his leg, Mr Livingston had suggested that the claimant and Johnny swap jobs for a short period, if everyone agreed, to let the claimant ease back into work, and that the claimant appeared to have taken it the wrong way but that generally they got on fine.

 

4.61 Mr Warke then asked Mr Livingston if he was aware of anyone called Jamie Miller and Mr Livingston said that he had never heard that name before. Mr Warke asked Mr Livingston if he had ever set up a Facebook account under someone else's name to which Mr Livingston replied that he did not have Facebook, had no interest in it and could not set one up.

 

4.62 On 12 September 2014 Mr Warke sent the claimant a letter informing him that having considered both the claimant's specific grounds of appeal and having looked at the matter as a whole his appeal had been unsuccessful for the following reasons:-

 

"It is not in dispute that you were running your own bird accessory business called Mark's Parrots which sold parrot cages and accessories, privately using the medium of Facebook to advertise it. When I discovered this, due to the fact that it was a serious conflict of interest with our business I instructed you to cease this immediately.

 

At a date after I gave the instruction to stop selling in competition with Jollyes, I am satisfied that Sarah at head office received a call, which she certainly believed was a genuine call from a customer informing the company that you had approached/discussed with a potential Jollyes customer in-store that you could provide that customer with a parrot cage selling it directly from your stock.

 

As I have said Sarah believed this was a genuine call and had [sic] she didn't find any indication to suggest otherwise.

 

The company made the decision to suspend you. This was carried out by the manager Alex Livingston. Alex informed me when I asked him what you had said upon being suspended, that you said you were just getting rid of you [sic] stock i.e. clearing the stock after having been told by me to cease that activity.

 

As discussed at the meeting, at no time did I ever sense any issues between yourself and Alex at any time in the past, in fact Alex was always quite protective of you. I did following our meeting ask other members of staff if they detected any issues or any atmosphere between yourself and Alex.

 

Other than normal business disagreements I do not believe that there was anything more serious. After speaking to Banbridge staff, it is clear that they have been aware of your private business selling cages and accessories.

 

You suggested that the particular sale in question was an enquiry from someone called Jamie Miller and that it came though a Facebook message. You suggested that Alex and Johnny had set up this Facebook account as part of "setting you up". At the meeting I asked that you show me this Facebook account as part of "setting you up". At the meeting I asked that you show me the Facebook message as it would still be there until deleted. You searched for the message and had many Facebook messages but nothing from Jamie Miller, so no evidence on this was presented.

 

My conclusions therefore are that this was a genuine complaint to head office regarding an attempt to privately sell a bird cage to a potential Jollyes customer. There is no suggestion from the other members of staff or indeed through my own contact at the store that there was any breakdown of your relationship between yourself and Alex to the point that he would deliberately "set you up" in this way. Indeed there is absolutely no evidence in support of that version of events.

 

To me, with all at the store knowing you sold cages privately, making a comment to Alex that you were just clearing stock would be just the sort of comment you would make in the circumstances. It also should be noted that Alex did not contact me to report that comment it was only relayed following a direct question to him.

 

Therefore I do believe you did discuss with a potential customer of Jollyes the private sale of a bird cage and after you had specifically been told to stop that activity. During our meeting you suggested that you were aware that if you continued to sell, your job would be at risk. I believe you did attempt to sell the cage, even though you knew the consequences if you were caught doing so.

 

Therefore I also conclude that dismissal was the correct penalty in the circumstances and this appeal fails for the above reasons."

 

 

The relevant statutory provisions

 

5. The right not to be unfairly dismissed is set out at Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 which provides:-

 

"An employee has the right not to be unfairly dismissed by his employer".

 

As the respondent has accepted dismissing the claimant, the statutory provisions which govern the determination of whether or not the dismissal was fair are set out at Article 130 which provides:-

 

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

 

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2)  A reason falls within this paragraph if it -

 

.... (b) relates to the conduct of the employee,

 

(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case.

 

The relevant principles of law

 

6. The Court of Appeal made it clear in Rogan -v- South Eastern Health and Social Care Trust (2009) NICA 47 that the above provisions:-

 

"make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal."

 

7. The Northern Ireland Court of Appeal followed the approach which it had already taken in Dobbin v Citybus Ltd (2008) NICA 42 which approved:-

(i) the guidance of Browne-Wilkinson J in Iceland Frozen Foods -v- Jones (1983) ICR 17 that:

(1) the starting point should always be the words of section 57(3) (the equivalent of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair'; and

(ii) the test set out by Arnold J in British Homes Stores -v- Burchell (1980) ICR 303 that:-

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element.

First of all, 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.

And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.

It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure," as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter "beyond reasonable doubt."

The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion'."

(iii) the guidance from Re H (minors) (1996) AC 563, Re D (2008) UKHL 33 and R(N) -v- Mental Health Review Tribunal (Northern Region) (2006) QB 468 that the civil standard of proof on the balance of probabilities was the appropriate standard of proof for the disciplinary panel but it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities,' per Richards LJ in the R(N) case.

 

8. At paragraph 26 of his judgment in the Rogan case, Morgan LCJ stated, "The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal."

 

9. At paragraph 7 of his judgment Girvan LJ stated, "... It is clear from the authorities that the employer's reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision."

 

10. In the case of W Weddel & Co Ltd -v- Tepper (1980) IRLR96 CA, Stephenson LJ followed the Burchell test and stated:-

 

"Employers suspecting an employee of misconduct justifying dismissal cannot justify their dismissal simply by stating an honest belief in his guilt. There must be reasonable grounds, and they must act reasonably in all the circumstances, having regard to equity and the substantial merits of the case. They do not have regard to equity in particular if they do not give them a fair opportunity of explaining before dismissing him. And it seems to me, they do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had in the words of the industrial tribunal in this case, "gathered further evidence" or, in the words of Mr Justice Arnold in the Burchell case, "carried out as much investigation into the matter as was reasonable in all the circumstances of the case". That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are not acting reasonably."

 

In that case the Court of Appeal upheld the decision of the industrial tribunal that the employer had acted unreasonably by dismissing the employee on the grounds of suspected dishonesty without first giving him a fair opportunity to defend himself. The employer also failed to give the employee an opportunity to appeal.

 

11. In Salford Royal NHS Foundation Trust -v- Roldan (2010) IRLR 721 CA, the Court of Appeal also approved the Burchell test. Ms Campbell referred the tribunal to the Court of Appeal's approval, in that case, of the judgment of the EAT in the A v B case (2003) IRLR 405 that, "it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite". She also referred the tribunal to the observation of Elias LJ that: "in cases of alleged misconduct, where the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other, employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but it is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved."

 

12. In Sainsburys Supermarkets Ltd -v- Hilt (2003) IRLR 23 the Court of Appeal held that:-

 

"The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer), applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason .... The purpose of the investigation was not to establish whether or not the applicant was guilty of the alleged theft but whether there were reasonable grounds for the employer's belief that there had been misconduct on his part to which a reasonable response had been to dismiss him."

13. In Linford Cash & Carry Ltd -v- Thompson (1989) IRLR 235 the Employment Appeal Tribunal laid down a series of guidelines which employers ought to bear in mind when deciding cases involving an anonymous informant which included:-

 

"2 In taking statements the following seem important: (a) Date, time and place of each and every observation or incident ....

 

3 Further investigation can then take place either to confirm or undermine the information given. Co-operation is clearly desirable. ..."

 

Submissions of the parties

 

14. Ms Campbell submitted that the claimant's dismissal was unfair and that the reasonableness of the employee's conduct fell well outside the band of reasonable responses for a number of reasons which she summarised in her written submissions as follows:-

 

(i) the dismissal was based on a vague phone call with no date or contact details given, and all assertions of the claimant during the disciplinary and appeal hearing were supported by other members of staff on investigation. It is hard to understand why, following recorded responses from other staff members during the investigation, which quite clearly supported the claimant, the respondent went on to make a decision to dismiss;

 

(ii) applying the leading unfair dismissal case of Iceland Frozen Foods, the tribunal must consider the reasonableness of the employer's conduct, not simply whether they consider the dismissal to be fair. The respondent had no reasonable grounds on which to sustain their belief in the misconduct and it should have given the claimant the benefit of the doubt in an ambiguous and uncertain situation. The claimant invites the tribunal to conclude that the conduct of the respondent in taking the decision to dismiss and uphold this decision on appeal, falls well outside the band of reasonable responses which a reasonable employer might have adopted and is therefore unfair.

 

15. In relation to Mr Scott who conducted the disciplinary hearing, Ms Campbell submitted that his belief in the claimant's guilt had not been reached after a reasonable investigation in the circumstances and his decision to dismiss the claimant was also unreasonable for a number of reasons which are summarised as follows.

 

(1) Mr Scott's decision that the alleged incident, to which the phone call of 30 July 2014 referred, occurred after 12 June 2014 was unreasonable because he 'quite clearly could not be sure' that it did.

 

(2) Mr Scott failed to investigate the case put forward by the claimant that there was a possibility that the complaint had been a set up by Mr Livingston and Johnny.

 

(3) Mr Scott failed to distinguish between the period before and the period after 12 June 2014 during his investigation and in his decision.

 

(4) Mr Scott failed to take proper account of the assertions of the claimant and the comments made by other members of staff during his investigation that the claimant had never pushed or promoted his business in store.

 

(5) Mr Scott failed to take proper account of the claimant's assertion and comments made by Mr Warke in his letter of 'concern' to the claimant and the comments of other members of staff that the claimant had not used his Facebook since Mr Warke had told him to stop running his business on 12 June 2014.

 

(6) Mr Scott failed to follow the guidance of Elias LJ in Salford Royal NHS Foundation Trust -v- Roldan (2010) IRLR721 CA that where the evidence consists of diametrically conflicting accounts of alleged incident with no or very little, other evidence to provide corroboration in some cases the employer will be entitled to find that they are not satisfied that they can resolve the conflict of evidence and simply find the case not proved and give the employee the benefit of the doubt; and

 

(7) even if Mr Scott had carried out as much investigation as was reasonable, he failed to consider the circumstances of the claimant's individual case and any mitigating factors before deciding that dismissal was the appropriate penalty.

 

16. Mr Underwood submitted that Mr Scott did act reasonably by putting the details of the matters to the claimant and by investigating the matters with other members of staff. However, if the tribunal found that there were any deficiencies in Mr Scott's investigation they were put right at the appeal stage.

 

17. Having considered the submissions of Ms Campbell and Mr Underwood in light of the facts found by the tribunal together with the relevant statutory provisions and legal principles, the tribunal was satisfied that:

 

(1) It was confirmed by the Northern Ireland Court of Appeal in the Dobbin and Rogan cases and it was made clear by the Court of Appeal in Great Britain in Sainsbury's Supermarkets Ltd -v- Hilt case, to which Ms Campbell referred the tribunal, that the standard of proof is the civil standard of proof on the balance of probabilities at all stages of the disciplinary process, not the criminal standard of beyond reasonable doubt as Ms Campbell's first submission seemed to suggest.

 

(2) Mr Scott's decision that the incident occurred after 12 June 2014 was a decision he was reasonably entitled to make for the following reasons:

 

(i) although no contact details had been left by the complainant on 30 July 2014 and although no date for the incident had been provided; and

 

(ii) although Mr Scott had stated, under cross-examination by Ms Campbell, that his decision was based on the fact that complaints usually came in "within 7-10 days" of an incident, he also gave evidence, under cross-examination, which was not contradicted and which the tribunal accepted that:

 

(a) that he was the person who dealt with most of the customer complaints in Northern Ireland;

 

(b) in his experience complaints related to incidents which had happened fairly recently;

 

(c) the vast majority of complaints are made within seven to ten days of an alleged incident; and

 

(d) he has never come across a complaint which has been made more than seven to ten days after an alleged incident.

 

(3) Mr Scott gave the claimant the opportunity to answer the allegations and to put forward his own case.

 

(4) In relation to the first charge or disciplinary matter namely whether the claimant was operating a personal business in direct competition with the company, the tribunal was satisfied that Mr Scott did investigate the claimant's assertion that he did not continue to use Facebook to sell products after 12 June 2014. The tribunal was satisfied that although Mr Scott differentiated between the periods before and after 12 June 2014 during the disciplinary hearing he did not differentiate between those periods when speaking to the other members of staff. Notwithstanding that, the tribunal was satisfied that it is clear from the answers they gave that they appreciated the distinction and that they answered accordingly. In light of those matters the tribunal was satisfied that when Mr Scott stated in his letter of dismissal to the claimant that other members of staff "were" also aware of the claimant selling parrot cages and accessories, he was referring to the period before 12 June 2014 and that the claimant should reasonably have understood that.

 

(5) In relation to the second charge or disciplinary matter namely whether the claimant had approached a potential Jollyes customer on company premises, with a view to promoting his own business, denying the company potential sales, the tribunal found, as set out at paragraph 4.19-4.22 above, that Mr Scott did not speak to Mr Livingston or Johnny about the claimant's assertion that the complaint may have been a set up by Mr Livingston and Johnny. That was so notwithstanding the fact that the claimant had given Mr Scott a number of reasons why he believed they may have done so before reaching his decision on guilt. In those circumstances the tribunal is not satisfied that Mr Scott's belief in the claimant's guilt was reached after as much investigation as was reasonable in the circumstances.

 

18. However it was made clear in the Burchell case, which was approved by the Northern Ireland Court of Appeal in the Dobbin and Rogan cases that the reasonableness of an employer's decision must be considered at the final stage at which the belief of the employee's misconduct is formed which is at the conclusion of any appeal process. This was confirmed by the Court of Appeal in the case of Taylor -v- OCS Group Limited (2006) EWCA Civ 702 in which it was held that:-

 

"If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect the tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker the overall process was fair, notwithstanding any deficiency at an early stage."

 

It was further confirmed by the Employment Appeal Tribunal in the case of Holt -v- Res on Cite Ltd (2014) UK EAT/0410 which emphasised that the tribunal's role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process.

 

19. Although the claimant's evidence was that the appeal hearing conducted by Mr Warke was a lot more in-depth than the disciplinary hearing and that it was carried out to a higher standard and although Ms Campbell acknowledged that more investigation did take place at the appeal stage, Ms Campbell submitted that Mr Warke had also acted unreasonably and that his decision was also unfair for a number of reasons which are summarised as follows.

 

(1) Mr Warke's decision that the alleged incident, to which the phone call of 30 July 2014 referred, occurred after 12 June 2014 was unreasonable because he "quite clearly could not be sure" that it did.

 

(2) Mr Warke failed to take proper account of the points raised and assertions made by the claimant during the appeal hearing that there was a possibility that the phone call may have been a set-up by Mr Livingston and Johnny in circumstances where:

 

(i) the claimant had informed Mr Warke that his relationship with Mr Livingston had not been very good, they had had a few run ins and he believed Mr Livingston had a grudge against him which was supported by other members of staff;

 

(ii) the claimant believed Johnny wanted his job and had been involved in setting up a "fake" Facebook profile on a previous occasion.

 

(3) Mr Warke failed to take proper account of the claimant's assertion that the Jamie Miller Facebook account had been "suspiciously" deleted sometime after the claimant had received a Facebook message from Jamie Miller (after 12 June 2014) about buying a parrot cage and after the claimant had replied that he could not sell him a parrot cage. Nor did Mr Warke investigate the deletion of the Jamie Miller Facebook account or the call. Instead Mr Warke upheld the claimant's dismissal because the claimant had failed to show him the Facebook messages. The claimant was therefore effectively dismissed for "failing to disprove an allegation that they could not reasonably prove with the evidence before them".

 

(4) Mr Warke failed to take proper account of the claimant's assertions that he:

 

(i) had never pushed or promoted his business or canvassed sales in store which was supported by members of staff;

 

(ii) had not used his Facebook page/operated his business since his meeting with Mr Warke on 12 June 2014 when Mr Warke told him to stop running his business, which was supported by members of staff and Mr Warke in his letter of "concern".

 

(5) Mr Warke accepted under cross-examination that the only evidence produced by the respondent was the transcript of the customer complaint which was received at Head Office on 30 July 2014. That was not a reliable piece of evidence to reasonably base the dismissal of an employee on because the phone call was relatively vague, no contact details had been left and "crucially" no date of the alleged incident had been provided. However, based on that phone call Mr Warke formed his belief of the claimant's guilt hastily and acted hastily upon it. He did not distinguish between the period before and after 12 June 2014 during the appeal investigation which is clear evidence that he was "simply going through the motions", having already made up his mind as to the guilt of the claimant. His belief was not therefore based on reasonable grounds and he did not act reasonably in accordance with the Weddel case.

 

(6) Mr Warke failed to follow the guidelines laid down in the Linford Cash & Carry Ltd -v- Thompson case, as set out above, when deciding matters involving anonymous informants.

(7) Mr Warke failed to follow the guidance given by Elias J in the Salford Royal NHS Foundation Trust -v- Roldan case, set out above, that "in cases of alleged misconduct where the evidence consists of diametrically conflicting accounts of an alleged incident with no or very little other evidence to provide corroboration one way of the other", in some cases it will be perfectly proper for the employer to find that they are not satisfied that they can resolve the conflict of evidence and simply find the case not proved and give the employee the benefit of the doubt.

 

(8) Mr Warke also failed to consider the circumstances of the claimant's individual case and any mitigating factors before upholding Mr Scott's decision to dismiss the claimant.

 

20. Mr Underwood's submissions are summarised as follows.

 

(1) Mr Warke's evidence should be preferred to that of the claimant whose evidence was at best unreliable.

 

(2) It is clear, in accordance with the Burchell guidance, that at the final stage at which Mr Warke made his decision following the appeal hearing and investigations, he had a genuine belief in the claimant's guilt and his belief was based on reasonable grounds having carried out as much investigation as was reasonable in all the circumstances and particularly in light of the claimant's failure to show him the Facebook message he claimed to have received from Jamie Miller and the response he claims to have sent which would have cleared him, despite claiming to have those messages on his phone at the appeal hearing and despite Mr Warke having asked the claimant to show them to him.

 

21. Having considered the submissions of Ms Campbell and Mr Underwood in light of the facts found by the tribunal, the relevant statutory provisions and relevant legal principles, the tribunal was satisfied that following Mr Warke's appeal hearing and investigation, he had a genuine belief that the claimant had:-

 

(a) been operating his personal business in direct competition with the company after 12 June 2014;

 

(b) approached a potential customer of the respondent on the respondent's premises with a view to promoting his own business denying the respondent potential sales;

 

and that Mr Warke had reasonable grounds on which to sustain that belief having carried out a reasonable investigation in the circumstances for the reasons set out below.

 

22. In relation to her submission that Mr Warke's decision that the alleged incident occurred after 12 June 2014 was unreasonable, Ms Campbell submitted that under cross-examination, Mr Warke admitted that he made the decision that the phone call related to a period after 12 June 2014, on the basis of his "experience" dealing with customers complaints and his "impression" that the call related to a fairly recent period and that he "quite clearly could not be sure" that the complaint did relate to a period after 12 June 2014. The tribunal is satisfied that under cross-examination by Ms Campbell, Mr Warke accepted that the transcript of the telephone call did not include an actual date of the alleged incident. Nevertheless he believed that it was clear that it was in recent times. Ms Campbell then put it to Mr Warke that that was the "impression" he got but in the absence of contact details and the date of the incident, the telephone transcript was a "relatively unreliable piece of evidence" upon which to institute a disciplinary process. In response to that and other questions from Ms Campbell, Mr Warke's evidence was that although no date for the incident had been provided in the telephone call, his decision that the incident occurred after 12 June 2014 was based on:-

 

(i) his conversation with Ms Bailey at Head Office who had taken the call;

 

(ii) the fact that his initial conversation with the claimant on the matter of selling parrot cages and accessories had been five or six weeks previously; and

 

(iii) his knowledge and experience that customer complaints were usually made quite soon after an alleged incident and not more than one month afterwards.

 

On the basis of those matters the tribunal was satisfied that Mr Warke's decision that the incident occurred after 12 June 2014 was a decision he was reasonably entitled to make.

 

23. In relation to Ms Campbell's submission that Mr Warke failed to take proper account of the points raised and assertions made by the claimant during the appeal hearing that there was a possibility that the phone call may have been a set-up by Mr Livingston and Johnny in circumstances where:

 

(i) the claimant had informed Mr Warke that his relationship with Mr Livingston had not been very good, they had had a few run ins and he believed Mr Livingston had a grudge against him which was supported by other members of staff;

 

(ii) the claimant believed Johnny wanted his job and had been involved in setting up a "fake" Facebook profile on a previous occasion;

 

the tribunal was satisfied that:

 

(i) Mr Warke made the claimant aware at the appeal hearing that it appeared to him from his visits to the Banbridge store that he and Mr Livingston were very close and that Mr Livingston had never said a bad word regarding him and gave the claimant the opportunity to address that;

 

(ii) following the appeal hearing Mr Warke investigated the claimant's assertions in respect of Mr Livingston and Johnny by speaking to other members of staff namely Judith, Jenna and Johnny. He also spoke to Mr Livingston with whom Mr Scott had not spoken;

 

(iii) as set out at paragraph 4.54 above, Judith told Mr Warke that the claimant and Mr Livingston's relationship was good sometimes and other times it was not and she thought, from what she picked up, that Mr Livingston always had an issue with the claimant over some budgies which were sold and which resulted in Mr Livingston getting a warning but that that was before she started to work there. Judith also stated that she could not say Johnny was good friends with anyone;

 

(iv) Jenna told Mr Warke that the claimant and Mr Livingston had run-ins and disagreements sometimes but got on the rest of the time;

 

(v) Johnny told Mr Warke that the claimant and Mr Livingston got on alright most of the time;

 

(vi) Mr Livingston denied that he had held a grudge against the claimant or that he had blamed the claimant for the warning he had received four years previously in relation to selling budgies. Mr Livingston explained to Mr Warke that the claimant had struggled in the back office and at times he had to tell the claimant where he had gone wrong but that they did get on. Mr Livingston also informed Mr Warke that when the claimant was off on long term sick leave with his leg, Mr Livingston had suggested that the claimant and Johnny swap jobs for a short period, if everyone agreed, to let the claimant ease back into work and that the claimant appeared to have taken it the wrong way but that generally they got on fine;

 

(vii) Mr Warke concluded from his own visits to the Banbridge store and from what the other members of staff had told him, as set out above, that other than "normal business agreements" there was nothing more serious between the claimant and Mr Livingston and that there was absolutely no evidence to support a conclusion that the relationship between the claimant and Mr Livingston had broken down to the point where Mr Livingston would have deliberately tried to get the claimant dismissed by setting up a fictitious Facebook account and by making a fictitious complaint;

 

(viii) under cross-examination by Ms Campbell, Mr Warke accepted that Judith's comment that she thought "Alex always had an issue" with the claimant since he had received a warning over budgies that had been sold "could" mean more than a normal business disagreement. However, in light of the fact that Mr Warke also made it clear, under further cross-examination by Ms Campbell, that that was not his view of the comment and in light of Judith's comment that at times their relationship was good, the comments of Jenna, Johnny and Mr Livingston and his own contact with the claimant and Mr Livingston, the tribunal was satisfied that Mr Warke's conclusion that other than "normal business disagreements" there was nothing more serious in the claimant and Mr Livingston's relationship and that there was no evidence to suggest that there was any breakdown in their relationship to the point where Mr Livingston would have deliberately set the claimant up by making a fictitious complaint was a conclusion he was reasonably entitled to reach.

 

24. As part of his investigation into the claimant's assertion that he may have been set up by Mr Livingston and by Johnny because Johnny wanted his job, Mr Warke asked Johnny if he had been involved in any way with setting the claimant up, perhaps because he wanted the claimant's job, both of which Johnny denied.

 

25. In light of the claimant's assertion that the Jamie Miller Facebook account may have been a fictitious account set up by Mr Livingston and Johnny, Mr Warke asked Johnny if he had ever set up a Facebook account under someone else's name to which Johnny replied "Mark (the claimant) and I set one up to sell DVDs from one time. Other than that I haven't." Ms Campbell put it to Mr Warke, under cross-examination, that it had come to light during Mr Warke's further investigation that Johnny had actually been involved in setting up a "fake" Facebook. Mr Warke replied that he was not sure that it was fake. Ms Campbell followed that answer up with the following question:-

 

"Ok under someone else's name".

 

Mr Warke replied that Johnny had stated that the claimant and he had set up another account, not necessarily in another name. Notwithstanding that exchange, Ms Campbell submitted at paragraph 36b. of her written submission:-

 

"Further, it should be highlighted that employee Johnny was involved in the setting up of a fake Facebook profile on a previous occasion (Bundle, pg.43), investigated at appeal stage only, information which appears to have been disregarded by the employer."

 

The tribunal is not satisfied that Ms Campbell's submission that Johnny was involved in the setting up of a fake Facebook profile on a previous occasion was factually correct and is not therefore satisfied that Mr Warke acted unreasonably by failing to take that into account in reaching his decision.

 

26. As part of his investigation Mr Warke asked Mr Livingston about the claimant's assertion that he and Johnny may have set up a fictitious account to get the claimant dismissed and, in particular, if he was aware of anyone called Jamie Miller to which Mr Livingston replied that he had never heard that name before. Mr Warke also asked Mr Livingston if he had ever set up a Facebook account under someone else's name to which Mr Livingston replied that he did not have Facebook, had no interest in it and could not set one up.

27. In relation to Ms Campbell's submission that Mr Warke had failed to take account of the "suspicious" deletion of the Jamie Miller account or to investigate it or the call, the tribunal was satisfied that:

 

(i) in light of Mr Warke's knowledge that the Facebook messages would not have been affected by the deletion of the account unless specifically deleted by the claimant, which had not occurred;

 

(ii) according to the claimant the messages were still there;

 

(iii) Mr Warke knew that the messages would be dated; and

 

(iv) if the messages were as stated by the claimant that would settle the matter in the claimant's favour;

 

Mr Warke's view that the deletion of the Jamie Miller account was not relevant was a reasonable view to take in the circumstances.

 

28. Ms Campbell also submitted that Mr Warke had effectively upheld Mr Scott's decision because the claimant had failed to produce the Facebook messages at the appeal hearing and in so doing had dismissed him for "failing to disprove an allegation that they could not reasonably prove with the evidence before them."

 

The tribunal was not satisfied that Ms Campbell's submission correctly reflected what occurred. It was made clear by the Employment Appeal Tribunal in A -v- B (2003) IRLR 405 to which Elias LJ referred in the Salford Royal NHS Foundation Trust -v- Roldan case to which Ms Campbell referred the tribunal that "... the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."

 

The tribunal was satisfied that that was exactly what Mr Warke did once the claimant indicated that Jamie Miller had sent him a message after 12 June 2014 asking about buying a parrot cage and that he had replied stating that he could not sell him one, because Mr Warke fully appreciated that those messages would have been evidence that would have settled the matter in the claimant's favour and that he acted reasonably in doing so.

 

29. Ms Campbell also submitted that Mr Warke had failed to take proper account of the claimant's assertion that:-

 

(a) he had never pushed or promoted his business or canvas sales in store before or after 12 June 2014; and

 

(b) he had not used his Facebook page/operated his business since his meeting with Mr Warke on 12 June 2014 when Mr Warke had told him to stop running his business;

 

despite the supportive comments of other members of staff and Mr Warke's comment in his letter of "concern", that he understood that the claimant had stopped running his Facebook business and had removed the information from his Facebook page.

 

The tribunal was satisfied that Mr Warke accepted that none of the staff members had seen the claimant pushing his business in store. However, Mr Warke also indicated under cross-examination that it was clear from their other comments, although the claimant denied it, that both Judith and Jenna had been referring all customers who wished to buy bird products that the Banbridge store did not stock to the claimant in store and that the claimant then arranged with those customers to go to his home to buy the products, although those products were available by direct order or in another store belonging to the respondent and it was also clear that Mr Warke regarded that as essentially the same thing. The tribunal was satisfied that, in those circumstances, that was a reasonable view for Mr Warke to have taken.

 

30. In relation to the claimant's Facebook business page called "Mark's Parrots", the tribunal was satisfied that Judith and Johnny had both indicated that the Facebook page had been closed down and that Mr Warke had checked shortly after his meeting with the claimant on 12 June 2014 and was satisfied that the claimant's Facebook business page called "Mark's Parrots" had been taken down. However, the tribunal was also satisfied that in this case the allegations against the claimant were not that he had failed to close his Facebook business page. The allegation was that the claimant had continued to operate his business by approaching a potential customer of the respondent on company premises with a view to promoting his own business. The tribunal was satisfied that Mr Warke did take the claimant's assertion that he had ceased operating his business after 12 June 2014 into account and that his decision not to accept it was a reasonable decision to have made in light of the claimant's failure to show him the Facebook messages he claimed to have, or the parts he could upload, which would have cleared him and his other enquiries as set out at paragraph 34 below.

 

31. In relation to Ms Campbell's submission that Mr Warke had failed to follow the guidelines laid down in the Linford Cash & Carry Ltd -v- Thompson case when deciding matters involving anonymous informants, the tribunal was not satisfied that Jamie Miller was an anonymous informant given that he gave his name and that the claimant not only recognised the name but had had previous communications with him.

 

32. In relation to Ms Campbell's submission that Mr Warke failed to follow the guidance by Elias J in the Salford Royal NHS Foundation Trust -v- Roldan case that in some cases employers would be entitled to find the case not proved where the evidence consists of diametrically conflicting accounts of an alleged incident with no or very little other evidence to provide corroboration, the tribunal was not satisfied that that was the situation in this case particularly when according to the claimant he had evidence which would have corroborated his assertion that he had informed Jamie Miller that he could not sell him cages after 12 June 2014 but failed to provide it and the other matters referred to at paragraph 34 below.

 

33. Ms Campbell also submitted that Mr Warke accepted under cross-examination that the only evidence produced by the respondent was the transcript of the customer complaint which was received at Head Office on 30 July 2014. She submitted that was not a reliable piece of evidence to reasonably base the dismissal of an employee on because the phone call was relatively vague, no contact details were left and "crucially" no date of the alleged incident was provided. However, based on the phone call on 30 July 2014 to Head Office Mr Warke formed his belief of the claimant's guilt hastily and acted hastily upon it. He did not distinguish between the period before and after 12 June 2014 during the appeal investigation which is clear evidence that he was "simply going through the motions", having already made up his mind as to the guilt of the claimant. His belief was not therefore based on reasonable grounds and he did not act reasonably in accordance with the Weddel case.

 

34. The tribunal was satisfied that although Mr Warke accepted, under cross-examination, that the only evidence produced of the claimant continuing his business after 12 June 2014 was the telephone complaint, he also made it clear, under cross-examination, on a number of occasions that his belief in the claimant's guilt was not based solely on the telephone complaint. The tribunal was satisfied from the facts found by it that Mr Warke's belief that the claimant was guilty of the misconduct alleged was a genuine belief reached by him following consideration of the information after:-

 

(i) he had made inquiries from Mr Livingston about any comment the claimant had made at the time of his suspension;

 

(ii) he had made inquiries from Ms Bailey with regard to the genuineness of the telephone complaint;

 

(iii) he had given the claimant a full opportunity to address the allegations and to put forward any matters he wished;

 

(iv) he had given the claimant the opportunity to show him the Facebook evidence of the relevant messages which the claimant asserted he had and which would have cleared him but which he failed to show;

 

(v) he had made inquiries of Judith, Jenna and Johnny in relation to the points and assertions made by the claimant at the appeal hearing; and

 

(vi) he had made inquiries of Mr Livingston in relation to the points and assertions made by the claimant at the appeal hearing including the alleged set up;

 

which the tribunal was satisfied corrected the deficiencies in Mr Scott's investigation, as set out at paragraph 17(5) above and was as much investigation into the matter as was reasonable in all the circumstances.

 

35. The tribunal was also satisfied that in light of:-

 

(i) the fact that Mr Warke had taken into account that the claimant had four children and needed the job when he gave him the benefit of the doubt in June 2014 after discovering that he was running a business in competition with the respondent;

 

(ii) the fact that Mr Warke had made it very clear to the claimant at their meeting on 12 June 2014 and had followed that up with a letter of "concern" on 19 June 2014 that if there was any evidence of the claimant continuing to operate his business in the future that he could be dismissed; and

 

(iii) Mr Warke's findings following the appeal hearing and investigation that the claimant had continued to operate his personal business in direct competition with the respondent by approaching a potential customer in store about selling a cage to her after their meeting in June 2014;

 

the tribunal was satisfied that his decision to uphold Mr Scott's decision to dismiss the claimant was within the band of reasonable responses.

 

36. Although Mr Warke's letter to the claimant upholding Mr Scott's decisions did not specifically distinguish between the period before and after 12 June 2014, the tribunal was satisfied that Mr Warke did make that distinction during the appeal hearing and his investigation and that the claimant could have had no reasonable doubt about that. The tribunal was also satisfied that although Mr Warke's letter following his appeal and investigation did not go into every single detail of his consideration of matters, it should reasonably have been clear to the claimant from the letter that Mr Warke had decided that he had continued to operate his business by approaching a potential customer of the respondent in store after 12 June 2014 and his reasons for making that decision.

 

37. The tribunal's conclusion was therefore that the claimant's complaint of unfair dismissal was not well founded and it is therefore dismissed.

 

 

 

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing: 15 and 28 January 2015, Belfast

 

 

Date decision recorded in register and issued to parties: