Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF:  2602/14

 

 

 

 

CLAIMANT:             John Davis

 

 

 

RESPONDENT:       Palmer and Harvey McLane Ltd

 

 

 

 

Certificate of Correction

 

 

Due to a typographical error, the decision issued on 28^th October 2015 incorrectly referred to the respondent as “Palmer and Harvey McClure Ltd” .  The title of the respondent at page 1 should read “Palmer and Harvey McLane Ltd”.

 

 

 

 

 

 

 

 

Employment Judge: __________________________________________

 

 

Date: __________________________________________

 

 

 

 

 

 

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2602/14

 

 

CLAIMANT:                          John Davis

 

 

RESPONDENT:                  Palmer and Harvey McClure Ltd

 

 

DECISION

The unanimous decision of the tribunal is that

 

(1)       the effective date of termination of the claimant’s employment with the respondent was 8 August 2014;

 

(2)       the claimant’s claim to the tribunal, having been presented on 6 November 2014, was presented to the tribunal before the end of the three months beginning with the effective date of termination.  The tribunal therefore had jurisdiction to consider the claimant’s claim of unfair dismissal pursuant to Article 1456 of the Employment Rights (Northern Ireland) Order 1996; and

 

(3)       the claimant was unfairly dismissed by the respondent and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £8,022.69.

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Drennan QC

Members:                             Mr S Pyper

                                                Mr I Acheson

 

Appearances:

The claimant was represented by Mr R Smyth, Barrister-at-Law, instructed by Dallas & Company, Solicitors.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

Reasons

 

1.1       The claimant presented a claim to the tribunal on 6 November 2014 for unfair dismissal and unlawful discrimination pursuant to the Disability Discrimination Act 1995, as amended.  The respondent presented a response to the tribunal on 11 December 2014, in which it denied liability for the claimant’s said claims but also stated the said claims were out of time and the tribunal therefore had no jurisdiction to determine the said claim.

 

1.2       The claimant having withdrawn that part of the claim, which related to disability discrimination, this said claim was dismissed, following withdrawal, by a decision of the tribunal dated 25 February 2015.

 

1.3       At a Case Management Discussion on 26 February 2015, as set out in the Record of Proceedings, dated 27 February 2015, the Employment Judge refused an application by the respondent for a pre-hearing review to determine the issue of time, referred to above, and the tribunal’s jurisdiction to determine the claimant’s claim of unfair dismissal.  The Employment Judge, in refusing the application, stated, inter alia:-

 

“I considered the submissions of both sides and was not satisfied that a separate hearing in that regard given the extent of evidence that would be required.”

 

            There was no appeal from that refusal to direct a pre-hearing review.

 

1.4       At the commencement of the substantive hearing, the respondent’s counsel made an application that the tribunal should determine the issue of time and the tribunal’s jurisdiction to determine the claim of unfair dismissal at the outset of the hearing.  Having considered the decision of the House of Lords in SCA Packaging Ltd  v  Boyle [2009] UKHL 37 and the guidance set out therein and again endorsed recently by the Court of Appeal in the case of McKinstry  v  Moypark Ltd and others [2015] NICA Unreported 20 March 2015, the tribunal was satisfied the reason for the refusal by the Employment Judge remained relevant and convincing and indeed more so, having regard to the terms of the overriding objective, where the parties had prepared for and were ready to give all relevant evidence to enable the tribunal to determine all issues during the course of the substantive hearing.  Indeed, in such circumstances, in the judgment of the tribunal, to have granted the respondent’s application would have been to take the ‘shortcut’ Lord Hope warned about in Boyle.

 

1.5       The claimant’s representative, confirmed after taking instructions, if the tribunal found the dismissal of the claimant was unfair, that he wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Reinstatement and/or Re-engagement pursuant to the provisions of                           Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996.

 

2.1       Having considered the evidence given to the tribunal by the parties, as set out previously, the documents contained in the agreed ‘trial’ bundle, as amended, to which the tribunal was referred during the course of the hearing, together with the oral and written submissions made by the representatives of the parties at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim of unfair dismissal, including the said issue of jurisdiction, as set out in the following                  sub-paragraphs.

 

2.2       At all times material to these proceedings, the claimant who was born on 23 August 1966, was employed by the respondent as the respondent’s Distribution Centre Manager in Belfast, formally known as the branch manager, prior to an organisational restructure in or about 2004.  In this role, the claimant was responsible for all aspects of the business function in Northern Ireland, including warehouse premises, security, distribution, customer service, credit, sales, stock control, stock ordering of production of customer orders.  Essentially, the day-to-day control and operation of the distribution centre was left in the hands of the distribution manager, who reported to a regional distribution director, who was based in Great Britain and who visited the distribution centre on a regular basis to check on progress of the stock.  It was agreed by the parties.  The claimant’s gross weekly basic pay, at the date of the termination of his employment with the respondent, was £826.96 and his weekly net pay was £507.69.  The claimant commenced his employment, for the purposes of these proceedings, on or about 14 December 1989.  Prior to the events, the subject-matter of these proceedings, the claimant was a successful, well-respected and very hardworking Belfast Distribution Centre Manager, for the respondent, with no previous disciplinary issues. 

 

2.3       In or about 2013, the respondent obtained a new major contract with Costcutter, a major supermarket franchise, which was due to commence in or about March 2014.  This involved the claimant in considerable additional work, long hours of work and increased pressure and responsibility.  As a consequence, unfortunately, the claimant was forced to take a period of sick absence from work, due to stress, from on or about 18 March 2014 to 24 March 2014.  However, his condition did not improve as he had hoped and, on or about 1 April 2014, the claimant commenced a prolonged period of sick absence for a stress-related illness.  Subsequently, the claimant indicated to the respondent that he intended to return to work on or about 7 July 2014, having obtained the necessary fitness to work statement from his own General Practitioner.  The claimant hoped to return, following this period of sick absence, as Belfast Distribution Centre Manager; but the senior management of the respondent had continuing concerns about the claimant’s health and the effect on his health of the said continuing work pressures in the said role.  It was suggested to the claimant, at a meeting with senior management, he would take on a temporary sales role; which, after consideration, the claimant indicated he did not wish to do.  He stated he would rather return to work in his Belfast Distribution Centre Manager role as soon as possible, working for a period, until he had fully recovered, under the interim management, which had been put in place in his absence.  It was agreed arrangements would then be made to facilitate his return to work with the support of Occupational Health.  However, disciplinary issues, which had arisen prior to the claimant’s said absence, due to his ill-health, overtook any return to work by the claimant at this time.  In particular, the tribunal rejects, as suggested by the claimant during the course of these proceedings, the determination of the disciplinary issues, the subject-matter of these proceedings was related in any way to the claimant’s refusal to take on the lesser role in sales following his sick absence or indeed the raising of the said disciplinary issues and the timing of same.  There was no evidence brought by the claimant to support his suggestion and, in particular, in circumstances where he accepted the disciplinary issues arose before his said sick absence.  The tribunal is satisfied that, but for the disciplinary issues, the respondent would have managed, as appropriate, the claimant’s return to work, following his sick absence and, in time, he would have returned to his Distribution Centre Manager role.  In the circumstances, it was not necessary for the tribunal to consider, in any further detail, the issues relating to the claimant’s sick absence and his said return to work.  The tribunal is further satisfied that the claimant’s state of health at the time of the disciplinary process did not prevent the respondent commencing the disciplinary process upon his return to work.  The claimant, although he had only recently indicated his fitness to return to work, was able to play a full part in the disciplinary process, when it commenced and to respond to the allegations made and set out his defence to the disciplinary issues raised with him (see later).

 

2.4       On or about 25 March 2014, Derek Bruder, Head of Risk Management, received a telephone call from the centre transport team at the respondent’s head office in England, which indicated that, following an audit of fuel usage at the respondent’s Belfast Distribution Centre, that some fuel could not be accounted for and there was a discrepancy on the records.  In particular, it appeared the issue related to a discrepancy in diesel dispensed from the Merridale fuel pump at the Belfast Distribution Centre, which had been installed at the Centre in or about September 2013.  Under the system, company cars and LGV vehicles were allocated individual keys, which enabled them to draw fuel from the pump, and records to be kept showing which vehicle had drawn fuel.  The records had shown that over a period of six months, between September 2013 to March 2014, in excess of 937 litres of fuel had been drawn using a key that had been set up as a ‘pool’ vehicle.  Loss Prevention were concerned, as it was aware there was no ‘pool’ car used in Belfast.  Gary Senior, Loss Prevention Manager, made some initial enquiries and spoke to the claimant, who at that time had returned to work, as set out above, and Colin Bradin, Facilities and Risk and Safety Manager at the Centre, about these issues.  Following these conversations, it appeared there were no documentary records to support any fuelling and Mr Bradin had himself used the key to fuel his private vehicle.  In the circumstances, Mr Senior decided a more formal investigation into the matter was required.

 

2.5       As indicated previously, following his conversation with Mr Senior, the claimant went off sick on or about 1 April 2014 and, properly in the tribunal’s judgment, the respondent decided not to carry out any further investigation at that time with the claimant in relation to these said fuel irregularities until he was fit to return to work.

 

2.6       Mr Senior produced an investigation report, dated 11 April 2014, following interviews on or about 3 April 2014 with Colin Bradin, Ronald Symington (Transport Operative) and Andy Hampton (Warehouse Production Manager).  The claimant was not interviewed at this time, as he had gone on sick leave by that date, as indicated previously.  In summary, the report stated what each had stated in the course of their interviews:-

 

                        “Colin Bradin

 

·         Colin programmed the Merridale key 2016 as he was having problems with the new system and some keys.

 

·         Colin confirmed that key 2016 was also used for fuelling employees’ vehicles that had been used on company business as well reps vehicles, company fleet vehicles and hire vehicles.

 

·         Colin confirmed that all fuel transactions were authorised by John Davis (DCM).

 

·         Colin stated on most occasions Ronald Symington would have fuelled any vehicle using key 2016.

 

·         Colin stated no form of written documentation was used within this process.

 

·         Colin confirmed that he would fuel his vehicle when the need arose and more often than not he would fill his tank up.

 

·         Colin stated that he would just estimate the amount of fuel used.

 

·         Colin also confirmed during the interview that he wasn’t the only person who had received fuel.  He stated that Andy Hampton also gained fuel from key 2016 for use in his vehicle on company business.

 

·         Colin confirmed that he had gained fuel on a number of occasions and if he was going to put a figure on it he suggested that it would be four or five times.

 

·         Colin stated that he was aware of the company expenses policy.  However it wasn’t used in Belfast, he stated it wasn’t briefed out here.

 

·         Colin also stated with hindsight he can understand the questioning and agreed that it was open to abuse.

 

Ronald Symington

 

·         Ronald is a transport operative who has been with the company since 1999.

 

·         Ronald confirmed that he knew about key 2016.  However he called it the spare key.

 

·         Colin informed me that the key was used to fuel vehicles that needed fuel and that he was told to use the key by Colin Bradin.

 

·         Ronald informed me that he had used the key to fuel up Colin Bradin’s car, Andy Hampton’s car and a number of reps’ cars.

 

·         Ronald informed me that it was Andy Hampton who told him to fuel his car up after using it on company business and that it was authorised by John Davis (DCM).

 

...

 

·         Ronald informed me that he would have verbally passed onto Colin an amount of fuel for each vehicle.

 

Andy Hampton

 

·         Andy confirmed that there had been two occasions where he had received fuel for using his car for company business, one in January 2014 and other in February 2014.

 

·         Andy confirmed that he had used his car for airport trips, hotel trips and retailer visits.

 

·         Andy confirmed that this was authorised by John Davis (DCM).

 

·         Andy also confirmed that Ronald Symington fuelled his car up and recorded it as being teatime as it going dark and went home after fuelling.

 

·         Andy stated that he wasn’t aware of the company expense policy until a couple of days ago; he said that he recalled Sue Anderson giving an employee some documentation to claim mileage.

 

·         Andy also stated he could see that by not recording any mileage the system could be open to abuse.

 

·         Andy also stated once shown the drawings from key 2016 that all the drawings were AM (mornings) and not as he recalls them.”

 

The report also noted that on 4 April 2014, Mr Senior contacted Jim Glover, the Director of Human Resources, with reference to getting clarity regarding any HR/Company Briefing in relation to the company expenses policy.  He noted that Jim Glover confirmed that all managers should have received an induction upon joining the company which included company benefits and processes such as expenses.  Mr Glover also informed Mr Senior that there was an e-mail to all Distribution Centre Managers and all managers (M1 – M4) on 3 January 2013 in relation to ‘expenses incurred on company business (see later) as it had been reviewed and updated’.  He confirmed also that the e-mail had been received by the claimant together with Colin Bradin and Andy Hampton.

 

In his conclusion, Mr Senior stated:-

 

“It is clear that there are issues within Belfast with regard to fuel usage and the management control surrounding company fuel.  Different Merridale keys are being used to fuel any vehicle from TN rigid vehicles, Mercedes sprinter vans as well as private/hire vehicles.  There are also clear issues surrounding employees using their own vehicles for company use then gaining fuel for that usage without proper records or control measures being in place.  There is a complete lack of understanding with reference to the company expenses policy, employees and managers who had been employed for many years are either not aware of the company expenses policy or consciously didn’t use it.  With this in mind I believe that the management team need to gain control of all company fuelling as well as total re-brief to all employees regarding the current expenses policy and its use ( ... )  In total I would suggest that it had been at best a total breakdown in management control in relation to fuel usage in Belfast as both John Davis and Colin Bradin are custodians of the control systems or at worse an unlawful use of company fuel/assets as the company are not aware of who has received fuel and for what purpose due to lack of records.”

 

2.7       Following the claimant’s indication that he was fit to return to work, an investigatory meeting relating to these issues in respect of fuel irregularities was arranged with the claimant and was held with Mark Brew, the Group Loss Prevention Adviser, on 29 July 2014.  At that meeting, the claimant was questioned, in relation to the alleged misuse of fuel at the Belfast Distribution Centre. 

 

            In the course of the interview, the claimant indicated, as follows, inter alia:-

 

                        “MB:

 

On the 3^rd of April 2014 three individuals from your depot at Belfast were interviewed.  Colin Bradin, Andy Hampton and Ron Symington.  What Colin said in interview was that key 2016 was used for fuelling employees’ private vehicles that were used on company business as well as reps vehicles and fleet vehicles as well as hire vehicles.  Colin confirmed that all fuel transactions were authorised by DCM John Davis and stated that there was no written documentation.  He confirmed that he had fuelled his own vehicle up and estimated the fuel he has used.  He confirmed that he was not the only person who had refuelled their vehicle and stated that Andy Hampton had refuelled his vehicle as a result of using his own vehicle for company business.  He stated that on most occasions Ron Symington would have carried out the refuelling using key 2016.  He also stated that he was aware of the company expenses policy.  However it was not used in Belfast.  Ron Symington stated that he knew about key 2016 and he called it the spare key.  He had been told to refuel several vehicles using the 2016 key by Colin Bradin.  He also said that when Andy Hampton told him to refuel his car because of company business it was authorised by DCM John Davis.  Any comment you would like to make at this time?

 

JD:

 

No.  Is that Ron’s statement?

 

MB:

 

Yes and in Andy Hampton’s interview he confirmed that his vehicle had been fuelled up by Ronald Symington who had used it for retail, hotel and airport visits.  Andy confirmed that all fuel was authorised by John Davis DCM.  He stated he was not aware of the company expenses policy until a couple of days prior to his interview and he could see how the lack of documentation could be open to abuse.

 

JD:

 

OK.

 

MB:

 

Each of the three interviewees confirms that the ultimate authorisation came from you as the DCM would that be an accurate reflection of those three interviews?

 

JD:

 

I would like to go back to the Colin Bradin interview.  Out of the drawings what percentage of fuel drawn were allocated to Colin Bradin.

 

MB:

 

There was no documentation.

 

JD:

 

Did Colin Bradin advise you of an arrangement specifically in place for him?

 

MB:

 

Who was the arrangement made with?

 

JD:

 

I’m going to explain it all.  There is a historic arrangement with Colin Bradin authorised by people above me.  When we appointed Colin Bradin I believe it was back in 2002 and we advertised for a transport manager.  We interviewed a number of candidates for the role and had a salary in mind for the role and it was decided not to disclose the salary figure within the advert choosing to ask the candidates at the time of the interview what their salary expectations were for the role.  Each indicated a figure considerably higher than that which we had budgeted and I recall one candidate referring to a figure which was higher than I was on at the time.  Each declared a withdrawal of interest upon us disclosing the salary we were proposing, the exception to this was Colin Bradin.  Colin’s own expectation was not ideal for this but we were getting someone with a qualification, we were getting someone who was willing to work for that salary.  We were always anxious that the trip to and from work may present an issue at some point, he may not stay.  ...  Colin approached to say he needed a salary increase otherwise he would be leaving.  He indicated that he did not want to leave but said the cost of fuel alone was making unviable for him.  We discussed our options such as letting Colin go, lose that significant investment in skilling him, forcing us then to recruit a new transport manager, we were conscious that it would only be a transport manager not the additional responsibilities and paying the market rate which was considerably higher than the rate Colin was on, ie additional cost to the business  ...  The other option was to pay Colin an increase however this was not budgeted for and this would have to be inflated to after deductions to cover the costs of travel.  The business decision taken to protect the overall exposure to the business and in keeping the salary budgets intact was to give him the fuel.  It was a business decision taken by senior management at the time and it became custom and practice and it was a decision taken with the best interest of the company with knowledge and skills taken in costs protection.  And when I say we, I refer to my line manager who is no longer with the business and his name is Andy Robertson.

 

...

 

MB:

 

Obviously now that you have brought this issue to our attention it will be explored as part of the investigation.  In relation to that, did you notify or inform subsequent line managers of this arrangement for Colin Bradin?

 

JD:

 

No.

 

MB:

 

Why?

 

JD:

 

It wasn’t something that we were trying to hide, it was custom and practice.

 

...

 

JD:

 

I authorised the issue of fuel to Andy Hampton but only on a couple of occasions.  As an employer and I see myself as an employer, I recognise that he was using his own vehicle on countless occasions back and forward to the two branches particularly at the time of set-up, five or six times a day at one point, eight mile round trip up to six days a week, collecting and dropping off with many visitors from both airports and hotels.  Taking head office staff to meetings in Omagh, Central of Belfast and ferrying people around.  Not to mention the back and forth to Bond Delivery and indeed the numerous deliveries made in his own car because it was more effective than sending out a lorry.  I want to add that all of the above were made without one saying can I have money for fuel or submitting any claim.  Again as an employer I recognised his commitment for the greater good of the business and I recognise he was making a personal financial sacrifice and as a gesture of goodwill on behalf of the company I authorised a fill or two.”

 

2.8       Following the said interview, the claimant was suspended by Mr Brew on full pay, pending a disciplinary interview to be held at a later date  He did so with immediate effect to minimise loss to the company, whilst allowing some lines of investigation to be explored.  In relation to subsequent lines of investigation highlighted by the said interview, Mr Brew considered, in particular, whether the claimant’s previous manager, Mr Andy Robertson, should be contacted, albeit he had now left the respondent.  Mr Brew, after consideration, decided it was not necessary or appropriate, as he explained in his witness statement to the tribunal:-

 

“In relation to speaking to Mr Davis’ previous line manager, Mr Robertson, he left the business in 2006, and since then, Mr Davis has had several line managers.  In my view, the original agreement should have been communicated to new line managers and as such whether Mr Robertson agreed to this arrangement or not, was irrelevant and added no weight for or against Mr Davis. 

 

In addition there were numerous communications in relation to expenses policy and the adherence to said policies, which are clear and concise and leave no room for interpretation, particularly for a senior manager who had worked for the company for many years.”

 

2.9       In a letter dated 21 July 2014, the claimant was given Notice of the Disciplinary Hearing.  In particular, the letter stated:-

 

“  ...  At the disciplinary hearing we will be considering claims of serious fuel irregularities and breach of company policies.  We ask you to provide evidence that this allegation is unfounded.  ... .”

 

Included with the said letter, inter alia, was a copy of the respondent’s disciplinary policy, the initial investigation report of Mr Senior, records of the said interviews with the claimant, Colin Bradin, Andy Hampton and Ronald Symington.  The letter concluded, stating that:-

 

“At the hearing we intend to obtain a clear and full picture of the situation.  If having considered all the evidence before us we reasonably believe the allegation is justified, you may receive an appropriate warning/be dismissed ... .”

 

2.10    Relevant extracts from the respondent’s disciplinary policy:-

 

                        “Principles :

 

(i)         No disciplinary action to be taken against any employee until the case has been appropriately investigated to establish the facts of the case.  For cases of gross and serious misconduct potentially leading to dismissal, the employee may be suspended on full pay and contractual benefits pending such investigation.  Suspension is not regarded as an assumption of guilt and will not prejudice any disciplinary if taken.

 

...

 

(vii)      No employee will be dismissed for first breach of discipline except in the case of gross misconduct, when the penalty will usually be dismissal without notice and without pay in lieu of notice.

 

(viii)     Disciplinary action relating to conduct may be implemented at any stage of the procedure if the employee’s alleged misconduct warrants such action.

 

(ix)       Each of the stages will be entered into only with the prior knowledge and involvement of the appropriate line manager and location HR manager/officer.  In cases of final written warning or dismissal, the regional HR manager must be contacted; dismissal can only be authorised by the regional HR manager (or Group HR if the RHRM is unavailable) usually after consultation with Group HR.  Group HR is to be informed of all dismissals.                                   [Tribunal’s emphasis]

 

...  If dismissal is being considered, the senior manager involved must advise the regional HR manager (or Group HR contact if unavailable) of the action taken to date and reasons for dismissal.

 

The senior manager will issue a notice of dismissal with reasons for dismissal, the date on which employment will terminate and the right of appeal.  The employee will be entitled to contractual notice as set out in his or her contract of employment, except where gross misconduct has taken place.

 

Where the senior manager and regional HR manager (or Group HR if RHRM is unavailable) are satisfied that gross misconduct has taken place, the result will normally be summary dismissal without notice or pay in lieu of notice.

 

                                                                                                                        [Tribunal’s emphasis]

 

                        Right of Appeal :

 

After each stage of the disciplinary procedure, the employee will have the right to appeal against the warning/dismissal.  ...  The decision of the manager hearing the appeal will be final within the internal procedure, except in the case of dismissal when a second appeal may be made ...

 

The senior manager hearing the appeal will conduct a review.  The review hearing is not a re-hearing of the original issue but to determine whether the disciplinary action was fair and reasonable.  The senior manager will consider representations made by the employee and the employee’s companion or representative, review all documentation relating to the original documentation, make further investigations where required.

 

Second appeal against dismissal :

 

A second appeal against dismissal may be made to a senior manager outside the location.  ...  The senior manager decision is final within the internal process.  The decision will be made in writing, summarising the reason for the decision ... .”

 

In the said policy, in Appendix 1, samples of offences which would normally be regarded as general misconduct and gross misconduct are included but it is made clear that the list of examples is not exhaustive under either category.  In the list of examples, there was no specific reference/express reference to the matters, which were the subject-matter of these disciplinary proceedings against the claimant.

 

2.11    Employee travel expenses – Relevant extracts from the policy

 

            The distinction between business and private mileage.

 

            Examples and statements derived from the Inland Revenue Official Booklet:-

 

“If employees do not pay for the cost of a journey which is ordinary commuting or private travel, income tax is payable to the employees.  Therefore –

 

(i)         employees with a company car must ensure they pay the private mileage for such journeys; and

 

(ii)        employees using a pool car or their own car cannot fuel or a mileage allowance for private journeys.”

 

Similarly, if subsistence expenses, like meals, tea/coffee, or other expenses like parking or tolls incurred on commuting or private were reimbursed by P&H, the amount reimbursed is taxed on the employees.  Therefore employees must ensure they claim only a subsistence or other expenses which are incurred on a business journey.

 

Accordingly, to avoid unexpected costs to yourself as an employee it is vital that you are clear as to whether the journey you make are ordinary, commuting, private or business.”

 

            The said document then set out a guide to help employees identify the differences in business and private mileage.  In particular, the document set out that any journey between an employee’s permanent workplace and home, or any other place where the employee attendance is not necessary for the duties of that employment, is ordinary commuting for which no tax relief is due. 

 

2.12    Policy - 75.2:

 

Payment to staff for use their own cars – Relevant extracts from the policy

 

“A certain times some staff with prior approval from their manager, may use their private motor cars for company business purposes.

 

The company pays an allowance based on pence per mile.  This payment applies to occasional use only and where this use becomes regular then the matter should be referred to the Regional Distribution Director of Head Office Transport Department.

 

This payment is intended to reimburse the vehicle costs, which will be made up of depreciation, fixed expenses (such as insurance, licence, MOT tests, etc) and also running costs (fuel/oil, repairs, new tyres, etc).

 

Costs such as depreciation, licence fee and insurance are not subject to VAT, but running costs including fuel and oil are subject to VAT.

 

...

 

The expense claim form in which the mileage payment is claimed must show the two headings separately, the depreciation total should be entered under ‘repairs’ and running costs total entered under ‘fuel’.

 

The attached voucher must be complete and attached to the expense claim form to ensure the correct VAT is claimed.  An example for business mileage of 112 miles, is included in the voucher.  It is also necessary to complete the attached voucher to demonstrate the business purpose of the journey to HM Revenue & Customs and the DSS.  No payments will be made for private mileage.  Whether mileage is business or private is determined by HM Revenue & Customs.  If you remain in any doubt as to whether mileage or business or private, you must contact your Regional Distribution Director, Head Office Senior Manager or Manager for clarification.”

 

2.13    A disciplinary hearing was held on Tuesday 5 August 2014, conducted by Derek Bruder, Head of Risk Management, with Susan Anderson, HR Business Partner, in attendance as note taker.

 

            Prior to the meeting, Mr Bruder met with Mr Brew to undertake a comprehensive review of the investigation file, including, in particular, Mr Senior’s internal report and the relevant company policies, as referred to previously.  He also confirmed with Mr Brew, as set out previously, why Mr Brew had not considered it necessary and appropriate to contact Mr Andy Robertson.  In the course of the conversation, Mr Brew explained the said policies had been reiterated, on several occasions since Mr Robertson had left the employment of the respondent.

 

2.14    During the course of the disciplinary hearing the claimant set out his defence to the issues, the subject-matter of the hearing, as set out in the Notice of Disciplinary Hearing, dated 31 July 2014.  Notes were taken of the said hearing, with Ms Anderson acting as note taker but significantly at no time relevant to these proceedings was she acting in her capacity as Regional HR Business Partner (North).  As she confirmed in evidence, at the hearing of this matter, she took no active part in the hearing other than to type up the minutes.  No handwritten notes were taken at the time but the minutes were typed up at the time of the hearing, with regular breaks to read the contents of the minutes to both the claimant and Mr Bruder to ensure accuracy.  In the circumstances, the tribunal is satisfied the said notes of the disciplinary hearing are accurate and reflect what was said during the course of the disciplinary hearing.  In the course of the interview the claimant repeated, in terms, what he had stated earlier in the investigation, as set out in the said investigation report, in relation to the arrangement that he maintained had been made in respect of Colin Bradin; and he confirmed that on two occasions he had given authorisation for Andy Hampton to refuel as he recognised that there was a significant occurrence of what could be a substantial loss to him on what was company business. 

 

It was not disputed by the parties at this hearing that there was no personal benefit to the claimant by what had occurred. 

 

The claimant also confirmed that the policy issued by head office entitled ‘Expenses incurred in company business’, which set out the correct way to claim back mileage using company, and referred to previously, was a policy of which he was aware and had again been sent out on or about 3 January 2013 to him reiterating the policy.  The claimant further confirmed that in relation to the arrangement which he stated was authorised by Andy Robertson in relation to Mr Bradin, he had not run the practice past any new line manager, subsequent to Mr Robertson, seeking clarification and/or authorisation.  The claimant stressed his dedication to the business and that any decisions taken by him in relation to these matters had been done to protect the business, which he was very passionate about, loved to bits and would do whatever was needed to achieve the needs of the business.  He stated that he was totally committed to the business to which he had given his life, it was his first offence and he asked for all that to be taken into consideration whenever any decision was taken.

 

2.15    Mr Bruder adjourned the meeting at approximately 12.45 and reconvened at approximately 13.10.  At that point, as noted in the minutes, he read out his response, which Ms Anderson was to type up and add into the minutes and send to all the parties:-

 

                        “DB:

 

John, I have considered your responses to the questions I have asked today, as well as the responses you provided during the investigation meeting.  I have read all other documentation.  I’ve also taken into consideration your previous employment history and I have considered the options open to me.  While it is your belief that you have acted in the best interest of the business and individual employees, I cannot gloss over the fact that your actions here have left Palmer & Harvey seriously exposed in relation to HMRC legislation and guidelines.  You also left individual employees seriously exposed to potential sanction from HMRC in relation to their personal tax affairs.  Notwithstanding the fact that you choose to breach the company policy.  Palmer & Harvey place a huge amount of trust on their senior managers and you have breached that trust and confidence placed on you by the business, to such an extent that the sanction I have decided on today is one of dismissal for gross misconduct, and breach of confidence.  The right of appeal is open to you and HR will write to you to outline the next steps.”

 

2.16    Mr Bruder accepted, in evidence, that he did not, before informing the claimant of dismissal, as set out above, seek authorisation from Regional HR or indeed any member of HR, as set out in the disciplinary policy.  The tribunal is satisfied that the words set out in the notes of the meeting, as referred to above, are an accurate record and that at no time, were the words ‘with immediate effect’ said by Mr Bruder, as suggested by Ms Anderson, the note taker, in her evidence to the tribunal.  Ms Anderson was not asked and did not give any authorisation at the relevant time.  At all times she was acting as note taker and not in her capacity as Regional HR Business Partner (North).

 

2.17    By letter dated Thursday 7 August 2014, which was received by the claimant on 8 August 2014, Mr Bruder wrote to the claimant.  In the letter, which the tribunal is satisfied is a standard form of letter normally written to an employee, following a disciplinary hearing, and after he had obtained relevant authorisation from someone in HR, other than Ms Anderson.  Mr Bruder stated, inter alia:-

 

“You were required to attend a disciplinary hearing with myself on Tuesday 5^th of August at the Templeton Hotel, in respect of a serious allegation of gross misconduct for serious fuel irregularities in breach of company policies.  Sue Anderson, HR business partner was also in attendance as note taker and you choose to be unaccompanied. 

 

It was explained that this hearing was a formal stage in the company’s disciplinary procedure and that if I decided that the allegation was proved, you could be dismissed from the company’s employment. 

 

You were given the opportunity to explain the issues at the time of the offence and to give any mitigating circumstances which should be taken into account. 

 

Having heard your explanation and also the statements made by relevant colleagues/witnesses and after my adjournment to consider the facts of the case, it is my reasonable belief that you should be dismissed from the company’s employment with immediate effect for gross misconduct for your actions in relation to serious fuel irregularities, breach of company policies and breach of trust and confidence.  You will not receive notice or pay in lieu of notice.  You will receive pay in respect of any outstanding holiday entitlement that you’ve earned and not taken.

 

You have the right of appeal against this decision ... .”

 

            [Tribunal’s emphasis]

 

2.18    By letter dated 11 August 2014, the claimant confirmed that he had received the letter, dated 7 August 2014, on 8 August 2014 and he wished to exercise his right of appeal against the decision of dismissal.  Insofar as relevant, he appealed on the following grounds:-

 

“I do not believe that a full and proper investigation was carried out or could have been carried out in the timescale allowed, following my attendance at the investigatory meeting held by Mr Mark Brew on Tuesday 29^th of July 2014 and the points I raised at that time which I do not believe were followed by the company ...

 

Whilst my actions may be deemed ‘breach of policy’, it is my submission the policy had been ordered by my line manager and the company had been aware of this for some time.  I therefore question the company acting on foot of an alleged breach at this time.

 

Given my commitment and contribution to the company throughout my 26 years’ service, I believe the punishment is excessive and reflects a determination by the company to remove me from the position of DCM. ... .”

 

2.19    On 12 August 2014, Mark Brew, the Group Loss Prevention Adviser, conducted an interview with Colin Bradin.  In the course of the said interview, the following, insofar as relevant , it was stated, as set out in the minutes of the interview:-

 

                        “MB:

 

As a result of the salary cap and the distance from the place of work, JD stated that an agreement was reached through himself and another senior manager to allow you to fuel up your private vehicle as part of your package.  Was that the case?

 

CB:

 

My understanding of it was that because we had no pool car I was asked if I would use my private car for airport runs etc, as I’ve stated previously and I’d be compensated for with the diesel.

 

MB:

 

So JD’s statement in relation to you having fuel provided as part of your contract because of your distance from Belfast to your home is incorrect?

 

CB:

 

There may be cross wires there because my understanding is that any work I done for Palmer & Harvey with my private vehicle would be compensated.

 

MB:

 

JD is clear in what he says about the agreement.  He is saying it was part of the package to keep you in employment that you would be provided with fuel to go from work to home.

 

CB:

 

My understanding is that I was to be compensated for the use of my car for Palmer & Harvey business.

 

MB:

 

So what perimeters did JD set you for using fuel?

 

CB:

 

My understanding was that I could use fuel for Palmer & Harvey business but not for going to and from work to home.  I was compensated with fuel not used fuel.

 

MB:

 

What JD highlighted in relation to this alleged package would cause concern with HMRC in relation to tax and specifically benefit in kind.  Do you understand the implication of these tax requirements?

 

CB:

 

It did not occur to me until you have explained it.

 

...

 

CB:

 

As far as I’m concerned the fuel I used was with the consent of JD for Palmer & Harvey business.

 

...

 

CB:

 

What’s going to happen with this issue?

 

MB:

 

The matters in relation to fuel have been dealt by disciplinary hearings and as such there is no further action necessary.  I must point out that the potential issues may be around benefit in kind and that would be a matter for HMRC.

matter for HMRC.”

 

2.20    An appeal meeting was held on 21 August 2014, which was conducted by                  Mr Rob Ebsworth, the National Operations Controller, who had been appointed to that position in December 2013.  At the appeal, the issues raised by the claimant in his Notice of Appeal were fully discussed and considered by Mr Ebsworth.  In essence, the claimant repeated what he had previously stated in relation to what had taken place in relation to the use of fuel by Mr Bradin, which he continued to state arose out of the agreement authorised by Mr Robertson, but also the reasons why Mr Hampton, on the said two occasions, had been allowed to obtain fuel, due to his frequent of his own car for visits on behalf of the respondent. 

 

2.21    By letter dated 29 August 2014, Mr Ebsworth stated that he had considered all the information put forward and after careful consideration, he had decided to uphold the company’s decision that there was reasonable belief that the offence occurred.  Insofar as relevant, he stated that the reasons for his decisions were, inter alia:-

 

“A full and through investigation with all parties involved was exhausted.  There were no checks or balances in place to corroborate your allegations.

 

The investigating managers did not identify any evidence to support your allegation of an agreement between the business and Colin Bradin to have a weekly, or regular fill of fuel.  The findings showing they were at best                  ad hoc ... I can find no evidence your line manager had altered any policies and again can find no evidence to support that the business knew of any such agreement between your then line manager and Colin Bradin to have a weekly or regular fill of fuel, notwithstanding the absence of any process to manage any such agreement.” 

 

On the face of the letter, there was no express reference to any consideration by Mr Ebsworth in relation to the sanction of dismissal imposed on the claimant, which the claimant had stated in his appeal letter he believed to be excessive, given his commitment and contributions to the company throughout his 25 years’ service.  However, it is proper to note that before reaching any decision, Mr Ebsworth had contacted Mr Bruder and asked him about a number of matters to assist him in his understanding of and, in particular, the alleged Robertson agreement relied upon by the claimant in respect of Mr Bradin; albeit Mr Ebsworth accepted, when writing to Mr Bruder, in his opinion it made no material difference to the breach.  Mr Bruder replied to Mr Ebsworth that he had considered this issue - ‘I do not believe that this makes any material difference, at all.  We have exhausted investigations with Colin Bradin and John Davis and both individuals, as you are aware give contrasting versions of events.  A key benchmark for me in all of this was the total lack of checks and balances which would have allowed the investigating managers to corroborate (or as not as the case may be) both versions’. 

 

In relation to the issue of sanction, Mr Ebsworth had asked Mr Bruder – ‘in terms of your decision to dismiss, clearly the failure to follow company policy and the consequence of it in itself is gross misconduct, can I ask you to quantify your thoughts in relation to his breach of trust and confidence for an employee of 25 years?’  In this context, it must be noted, Mr Bruder accepted in evidence to the tribunal that this charge of breach of trust and confidence had not been expressly set out in the letter notifying the claimant of the disciplinary hearing.  Indeed, he accepted, in evidence, that it only occurred to him in the course of the meeting and was, in part, due to the fact that the claimant did not accept any wrongdoing, in his view, relying, in particular, on the Robertson agreement in relation to Mr Bradin.  This reason was not set out in the letter of dismissal nor was it said when Mr Bruder was giving his conclusions at the end of the disciplinary hearing.  Indeed, the first specific express reference by Mr Bruder to breach of trust and confidence was when announcing his findings at the conclusion of the disciplinary hearing no more detailed reasons were given in the letter of dismissal save, as set out previously, that it was Mr Bruder’s reasonable belief that the claimant should be dismissed for gross misconduct for his actions in relation to serious fuel irregularities, breach of company policies and breach of trust and confidence. 

 

In response to Mr Ebsworth, to the question raised above in relation to sanction, Mr Bruder stated – ‘During my decision-making process I considered JD’s previously good character during his 25 years of service with the business.  In my opinion, the clear breaches of policy were clearly worthy of consideration for the sanction of dismissal for gross misconduct.  It was also my belief that the business and JD had reached a point where there was a total breakdown of trust and confidence in his ability to act as a business leader who acts with true integrity and transparency at all times.  I considered JD to have a laissez faire attitude towards corporate governance which is totally unacceptable at any level, let alone that of a DCM.  Leaving both the business and individuals under his charge exposed to sanctions with HMRC, it was a further example of his attitude towards corporate governance.’

 

Mr Ebsworth, in conducting the appeal, explained his role was to determine that a fair process had been followed and that the claimant had an opportunity to present the reason why he felt the outcome was unjust or unfair but made it clear that he was not there to go over the disciplinary hearing.  His e-mail correspondence with Mr Bruder, as set out above, was at no time copied to the claimant or its contents raised directly with the claimant during the course of the appeal. 

 

2.22    At the conclusion of the letter dated 29 August 2014, Mr Ebsworth informed the claimant of his right to a second appeal.  The second appeal hearing was arranged to take place on 16 September 2014 before Julian Streeter, the then managing director – operations of the respondent.  Mr Streeter is now no longer in the employment of the respondent.  The tribunal found Mr Streeter a most unsatisfactory witness, when giving his evidence to the tribunal.  In particular, to the tribunal’s surprise, although he knew he was to give evidence.  Mr Streeter failed, before he gave his evidence, to refresh his memory and/or review the relevant documentation, contained in the trial bundle.  However, Mr Streeter’s failure to refresh his memory and/or review the relevant documentation in the tribunal bundle before giving evidence, confirmed to the tribunal its serious concern about what Mr Streeter had in fact considered, when hearing this second appeal.  This right of second appeal is somewhat unusual in the tribunal’s experience, but having been granted under the respondent’s disciplinary policy, it required to be conducted in a fair and proper manner.  The tribunal concluded, on the evidence, that, prior to the hearing, Mr Streeter had not reviewed any of the relevant paperwork, before he conducted the appeal, which it must be noted had been properly done by both Mr Bruder and Mr Ebsworth before conducting their respective hearings.  In fact, the tribunal is satisfied that Mr Streeter, rather than reviewing any of the relevant documentation as he should have done, had relied solely on a document entitled ‘John Davis – Disciplinary Overview’.  This document in memo form, was prepared for Mr Streeter on 16 September 2014 by Mark Brew prior to Mr Streeter conducting the appeal.  Mr Brew, as set out previously, had interviewed the claimant on 29 July 2014 – which interview had led to the claimant’s suspension and the decision to hold the disciplinary hearing.  Although much of what was stated in the said memo properly recorded and summarised, insofar as relevant, what had taken place during the disciplinary process, and all of which the claimant was fully aware, the tribunal noted, with considerable concern, the summary at the conclusion of the document – and, in particular, its use of language which was made by a person who had already played an early part in the disciplinary process and whose actions in the disciplinary process, along with others, was the subject of this appeal, all of which Mr Streeter was meant to be considering an appeal.  In the tribunal’s judgment this document, in particular the summary, went far beyond an aide-memoire of the main events that had occurred in the disciplinary procedure and included highly emotive and subjective comments by Mr Brew.  The contents of such a memo, given the reliance on it by Mr Streeter, became, in the judgment of the tribunal, of even greater relevance in relation to the fairness of this second appeal:-

 

                        “Summary

 

This matter has been thoroughly investigated from the initial issue being identified; this has included close examinations of CCTV footage, fuel reports and interviews of key members of staff in the investigation.  The investigation identified that an unsanctioned arrangement was in place at the Belfast Depot that flagrantly ignored and dismissed the use of company policy in relation to expenses and mileage claims.  This was balanced against the fact that the DCM John Davis had dealt with members of staff for breaches of the said policy and made a conscious decision to not apply it when he deemed appropriate.

 

This decision exposed the company and employees to severe consequences with HMRC in relation to tax liabilities and, as such, was not the behaviour of a long-established senior manager with the company’s best interests at heart.  This decision was compounded by the length of time that this arrangement had been in force and the potential that it would have definitely continued, if not for this investigation. 

 

John Davis has consistently failed to appreciate the level that his actions have exposed the business to and throughout the process continued to trivialise the matter as an appropriate decision that he made.

 

As a result of all these aspects of this matter, the decision was made to dismiss John Davis on the grounds of gross misconduct and breach of confidence.  This was clearly the balanced approach due to the inability of John Davis to comprehend the impact of his actions.”

 

This document, relied upon by Mr Streeter for the purposes of the appeal, was never shown to the claimant nor was he given the opportunity to challenge anything stated therein and, in particular, what had been stated in the summary by Mr Brew.

 

2.23    The second appeal took place on 17 September 2014.  The claimant in his second appeal complained, in particular, about the failure, as part of the disciplinary process, to contact his former manager, Mr Robertson in relation to the Robertson agreement relating to Mr Bradin complaining, in particular, he had been told by Mr Brew ‘this would be looked into as part of this investigation.  It is clear that further enquiries to establish the facts did not happen between 29 July 2014 and the disciplinary hearing on 5 August 2014 at which I was dismissed’.

 

            In a letter dated 24 September 2014, Mr Streeter informed the claimant he had decided to uphold the respondent’s decision to dismiss the claimant stating, inter alia, the reasons for his decision were as follows:-

 

·         “There is no dispute that there was a clear breach of company policies and serious fuel irregularities.  Colin Bradin’s denial that there was ever an agreement in place in the provision of fuel to cover private mileage to and from home to work, does not alter the fact that, by your own admission, company policies were totally disregarded.

 

·         Your approval of the issue of fuel has placed the company at risk of potentially significant charges/penalties from HMRC for not properly disclosing benefit in kind arrangements through P11D returns.  HMRC have the power to make retrospective charges going back up to six years for non-compliance.

 

·         Andy Robertson, your previous line manager left the company shortly after I joined in 2007.  Since that date you have had Martin Davies, Robert Ebsworth and myself as your line manager as various times and at no time have you raised this issue.  The relevant policies are available to all managers and were communicated to all managers again in an e-mail from Jim Glover in January 2013.  In addition the Merridale system was introduced in September 2013.  There had been therefore a number of occasions for you to raise any issues with your line manager in order to make sure you are managing the branch in compliance with company policies.

 

...

 

·         I am satisfied the process followed has been fair and the decision to dismiss is reasonable.

 

This now concludes the internal appeal process.”

 

2.24    As stated previously, the claimant following receipt of the letter, dated 7 August 2014, consulted solicitors and, in light of their advice, the claim form was presented to the tribunal by his said solicitors, on his behalf, on 6 November 2014.  The claimant, in light of the said letter stated, in evidence, at all times he believed his said claim form had been presented to the tribunal in time, pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996.  It should be noted in his said claim form, the claimant said his employment ended on 7 August 2014, relying on the date of the said letter.  In the respondent’s response form, the respondent stated the effective date of termination was 5 August 2014, the date of the disciplinary hearing with Mr Bruder.  It further stated ‘the date of presentation was 6 November 2 days late’.  The respondent’s representative properly accepted, if the effective date of termination was 5 August 2014, then in fact the claim was only one day late (see further Paragraph 3.4 of this decision).

 

2.25    The tribunal is satisfied that, following his dismissal, the claimant made reasonable efforts to obtain further employment, indeed commencing on 10 November 2014, the claimant found permanent position as operations manager with United Wine Merchants Ltd, at an average net weekly wage of £474.22, giving a shortfall between the net weekly pay with the respondent and with his new employer of £33.47.

 

Relevant law

 

3.1       Article 129 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides, insofar as relevant:-

 

                        “(1)      ... ‘the effective date of termination’

 

                        ...

 

(b)       in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect ... .”

 

3.2       Under Article 145 of the 1996 Order, in relation to a claim of unfair dismissal it is provided, insofar as relevant:-

 

                        “ ...

 

(2)       ... an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

 

(a)       before the end of the period of three months beginning with the effective date of termination, or

 

(b)       within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months ... .”

 

3.3       In Newman  v  Polytechnic of Wales Students Union [1995] IRLR 72, it was held that the effective date of termination has to be determined in a ‘practical and common sense manner’.  In Fitzgerald  v  University of Kent at Canterbury [2004] IRLR 300 the Court of Appeal held that the effective date of termination, which by law sets time for running for lodging a claim in the employment tribunal, is to be objectively determined and cannot be fixed by agreement between employer and employee.  The effective date of termination is a statutory construct which depends on what has happened between the parties over time and not on what they may agree to treat as having happened. 

 

            In Gisda Cyf  v  Barrett [2010] IRLR 1073, the Supreme Court held that the construction and application of ERA 1996 s 97 (in similar terms to Article 129(1)(b) of the 1996 Order) should be guided principally by the underlying purpose of the statute, the protection of the employee’s rights and not by the conventional principles of contract law.  Following the decision in Brown  v  Southall & Knight [1986] IRLR 130 (EAT), where dismissal is communicated by letter the effective date of termination is the date when the employee reads it (or has had a reasonable opportunity to read it) rather than the date when the letter was posted or delivered, or the date when the employer has decided to dismiss the employee.  In determining whether the employer had a reasonable opportunity to find out about the dismissal the correct test is to take into account the reasonableness of the employee’s behaviour rather than concentrating entirely on what is practically feasible.  The Supreme Court emphasised that the doctrine of constructive knowledge had no place in the debate as to whether a dismissal had been communicated.  On the facts of the case, the claimant had been informed at the conclusion of the disciplinary hearing she was told to expect to receive a letter informing her of the outcome of the hearing.  Lord Kerr in the course of his judgment also stated:-

 

“ ... In any event, certainty, although desirable, is by no means the only factor to be considered in determining the proper interpretation to be given to Section 97 (of Article 129 of the 1996 Order).  What will most strongly influence that decision is the question of which construction most conduces to the fulfilment of the legislative purpose.  And, of course, an employer who wishes to be certain that his employee is aware of the dismissal can resort to the prosaic expedient of informing the employee in a face to face interview that she or he has been dismissed ... .”

 

3.4       Under Section 39 of the Interpretation Act (Northern Ireland) 1954, under ‘Time’ it is provided that:-

 

“(2)      where in an enactment a period of time is expressed to begin or to be reckoned from, a particular day, that day shall not be included in the period.”

 

            As a consequence of the above provisions, the relevant three month time-limit set out in Article 145 of the 1996 Order give an employee an ‘extra day’ to present a claim, which is not available under the equivalent provision which applies in Great Britain under the Employment Rights Act 1996 (Section 111).

 

3.5       It was accepted by the claimant’s representative, in the course of his oral submissions, that if the tribunal found the claimant’s claim was out of time, that no application had been made to the tribunal to allow the tribunal to extend time, pursuant to Article 145(2) of the 1996 Order (‘reasonably practicable’ test); and the onus was on the claimant to satisfy the tribunal in relation to the said test and no relevant evidence had been brought before the tribunal in relation to same.  In the circumstances, it was not therefore necessary for the tribunal to set out the relevant law in relation to the interpretation of the said test contained in Article 145(2) of the 1996 Order. 

 

3.6       Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

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

 

            Article 130 of the 1996 Order 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 (if more than one the principle) 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)      The 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 a question whether the dismissal is fair or unfair, (having regard to the reasons 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 as treating it as a sufficient reason for dismissing the employee; and

 

(c)        shall be determined in accordance with equity and the substantive merits of the case.

                       

                        ...

 

                         (6)      Paragraph (4) is subject to Article 130A ... .”

 

            Article 130A of the 1996 Order provides:-

 

“(1)      An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

 

(a)       one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

(b)       the procedure has not been completed; and

 

(c)        the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

 

(2)      Subject to Paragraph (1) failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

 

            Article 118 of the 1996 Order provides:-

 

“(1)      The Notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –

 

                                                ...

 

(c)        is not less than 12 weeks’ notice if his period of continuous employment is 12 years or more.”

 

3.7       Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.   These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.

 

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal.  There are two alternatives, namely:-

 

(a)       standard dismissal and disciplinary procedures (DDP);or

 

(b)       a modified DDP.

 

There was no dispute that the latter procedure was never applicable in this matter. 

 

Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-

 

“(i)       Step 1 –

 

A statement of grounds for action and invitation to meeting –

 

 (1)      The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 

 (2)      The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

 

Step 2 – Meeting

 

(1)       Meeting must take place before action is taken, except in the  where the disciplinary action consists of suspension.

 

                                    (2)       Meeting must not take place unless –

 

                                   (a)       the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and

 

                                   (b)       the employee has had a reasonable opportunity to consider its response to that information.

 

                                    (3)       The employee must take all reasonable steps to attend the meeting.

 

                                    (4)       After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

 

                                    Step 3 – Appeal

 

                                    (1)       If the employee does wish to appeal, he must inform the employer.

 

                                    (2)       If the employee informs the employer of its wish to appeal, the employer must invite him to attend a further meeting.

 

                                    (3)       The employee must take all reasonable steps to attend the meeting.

 

                                    (4)       The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

 

                                    (5)       After the appeal meeting the employer must inform the employee of its final decision.”

 

(ii)        There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-

 

                                                “Introductory

 

                                                           (11)     The following requirements apply to each of the procedures set out above (so far as applicable)

 

                                                 Timetable

 

                                                            (12)    Each step and action under the procedure must be taken without unreasonable delay.

 

                                                 Meeting

 

                                                 (13)   

 

                                                 (1)      Timing and location of meetings must be reasonable.

 

                                                 (2)      Meetings must be conducted in a manner which enable both employer and employee to explain their cases.

 

                                                  (3)      In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”

 

                        (iii)       Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-

 

                                                  “(1)     If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, …               non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”

 

                                           (iv)       Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.

 

                        (v)        Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.

 

3.8       The Employment Appeal Tribunal, in the case of Venniri  v  Autodex Ltd [UKEAT/0436/07] at Paragraph 34, held the tribunals are under duty to consider whether or not a dismissal is automatically unfair (under the equivalent provisions in the Employment Rights Act 1996 [which then applied in Great Britain] to Article 130A of the 1996 Order), even where that allegation has not been expressly pleaded, which was the case in the present proceedings, on the grounds that these provisions are part of the ‘essential fabric of unfair dismissal law’.  The Employment Appeal Tribunal has also held, in the case of Metrobus Ltd  v  Cooke [UKEAT/0490/06] (Paragraphs 27 – 29), where a tribunal has made a finding of automatic unfair dismissal, pursuant to similar provisions in the Employment Rights Act to Article 130A(1) of the 1996 Order, it may be ‘useful’ for the tribunal to record its judgment, in the alternative, on the ‘ordinary’ unfair dismissal allegation, (ie pursuant to Article 130 of the 1996 Order).

 

3.9       Failure to comply with the relevant statutory dismissal procedures has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or in an adjustment downwards (in the case of default by the employee).  Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the tribunal considers it just and equitable, up to 50%.  However, under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable.  Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order).

 

3.10    In view of the tribunal’s decision, as set out later in this decision, that the statutory dismissal procedure had been complied with, it was not necessary to consider the legal authorities in relation to the issue of uplift of the compensatory award.

 

3.11    In considering the statutory dismissal procedure, to which reference has been made above, in the case of Lewis  v  McWhinney’s Sausages Ltd [2013] NICA 47, in the course of his judgment, Morgan LCJ, delivering the judgment of the Court, referred to the requirements of these provisions, as referred to by the Employment Appeal Tribunal in the case of Alexander  v  Bridgen Enterprises Ltd [2006] ICR 1277, when he stated:-

 

“In Step 1 the employer merely had to set out in writing the grounds which lead him to contemplate dismissing the employee.  Under the second step the basis for the grounds was simply the matters which had led the employer to contemplate dismissing for the stated grounds.  The objective is to ensure that the employee is not taken by surprise and is in a position to deal with the allegations.  The letter of 20^th of May 2010 identified the occasion on which the alleged insubordination occurred and identified verbal abuse as to the nature of the insubordination.  The letter was sent two days after the meeting of which a complaint was made so the appellant was in a good position to contradict any alleged statement or explain anything said by him.  In those circumstances the letter satisfied both of these tests so that no failure to comply with the statutory procedures arose in this case.  The statutory procedures do not require the employer to set out the evidence in respect of the matter as an issue although it can be helpful if the employer chooses to do so.”                                                     (See Paragraph 23 of the judgment)

 

            (See also further Paragraph 3.17 of this decision in relation to the relevance of appeals in any dismissal procedure.)

 

3.12    In particular, in Alexander, the Employment Appeal Tribunal stated that the Step 1 statement should:-

 

“Do no more than state the issue in broad terms ... the employee simply needs to be told that he is at risk of dismissal (or, presumably, other disciplinary action) and why (Paragraph 38).  In conduct cases, the Step 1 statement will need to ‘[identify]’ the nature of the misconduct in issue, such as fighting, insubordination or dishonesty,  In other cases it may require no more than specifying, for example, that it lack of capability or redundancy.”

 

            In Sahatciu  v  DPP Restaurants Ltd [UKEAT/0177/06] it was held that ‘A widely pedantic reading of the DPP is as unattractive as an overly technical construction of a Step 1 grievance letter under the statutory grievance procedure (the statutory grievance procedure is now repealed in Great Britain and Northern Ireland)’.

 

            In the case of YMCA Training  v  Stewart [2007] IRLR 185, Underhill J, as he then was, referred to the statement as a statement in ‘headline terms’ – Paragraph 9.

 

            Somewhat surprisingly, in the case of Homeserve Emergency Services Ltd  v  Dixon [UKEAT/0127/07], the Employment Appeal Tribunal held that an employer’s letter had complied with Step 1 even where it did not say where that it was contemplating dismissal.  However, this was because, according to the Employment Appeal Tribunal, it was ‘implicit’ from a letter inviting the employee to a ‘formal disciplinary meeting’ for ‘breach of contractual obligations’ that it was contemplating with some disciplinary action.  However, in Zimmer Ltd  v  Brezan [UKEAT/0294/08] the Employment Appeal Tribunal held that a Step 1 letter was defective because it did not specifically inform the employee that he was at risk of dismissal (and, on the facts, that there was no context that could save it).  In the case of Draper  v  Mears [2006] IRLR 869, the Employment Appeal Tribunal held that it was sufficient, in a case involving dismissal for driving a vehicle after consuming alcohol, for the Step 1 letter, to refer only to ‘conduct which fails to reasonably ensure the health and safety of others’.  Indeed, the Employment Appeal Tribunal held that, where there is ambiguity over the content of the Step 1 letter, the tribunal is ‘entitled to look at the whole context’ in order to resolve any such ambiguity.  It may be thought that this is somewhat similar to the relevance of context, which was referred to by Elias P in the well-known case of Canary Wharf Management Ltd  v  Edebi [2006] IRLR 416, when considering the then somewhat similar provisions relating to the statutory grievance procedures (now repealed).  The Employment Appeal Tribunal held that looking at the whole matter in context, made it impossible for Mr Draper, who ‘knew full well the allegations against him before the Step 1 letter reached him’, to argue there had been non-compliance with the DDP that rendered his dismissal automatically unfair.  In Draper, the Employment Appeal Tribunal also noted that, while the Step 1 letter and the Step 2 meeting are separate matters, it may often be the case that Step 2 is complied with before Step 1.

 

            In YMCA Training  v  Stewart [2007] IRLR 185, the Employment Appeal Tribunal suggested that tribunals should not ‘be distracted by the fact that the parties have been following an internal procedure with more elaborate requirements and different terminology from those required by the statute : it is necessary to look between the parties own labels and focus on whether the substantial requirements of the statute, which are simple and non-technical terms, were or were not met’.

 

            See further Cartwright  v  Kings College London [2010] EWCA Civ 146 where the Court of Appeal endorsed the approach in Alexander, Homeserve and Zimmer to the requirements of a Step 1 statement as reflecting a sensible and practical interpretation of the statutory provisions.

 

            In Cartwright, the Court of Appeal emphasised a prior oral exchange could not fill a gap in the statutory procedure since the procedure required a statement of the minimum information in writing stating, ‘if the opposite were true, it would mean an employer could send an employee a statement saying no more than ‘Re our discussion yesterday, please come to a meeting tomorrow to discuss it further’ and then proffer it as a sufficient Step 1 statement as proof the discussion had covered the headline information required to be included in such a statement’. The court also made clear the writing and sending of a Step 1 statement was an elementary exercise requiring minimal skill, and any employer familiar with the requirements had only himself to blame if he was unable to create and send the necessary statement.

 

Further in Cartwright, whilst approving the decision in Homeserve and the finding it was ‘implicit’ in the invitation letter that dismissal was on the cards, the Court of Appeal made it clear that ‘implicit’ and ‘implied’ were words to be handled with care and Lord Justice Sedley at Paragraph 103 of his judgment that the factual context may be very important in determining this issue:-

 

“The Statute is quite clear that there is to be ‘a statement’ which ‘sets out’ the necessary things.  While there may be cases in which, in the factual context, a document so obviously means or refers to something it does not actually spell out that it can still be said to be a statement which sets out the requisite matters.  But it is in that sense and that sense only that one can properly qualify the statutory requirement by accepting as implicit something which is not – as it should be – explicit.”

 

Issues have arisen, in interpretation of these provisions, where an employer, for example, as part of its investigation, uncovers evidence of a further and distinct act of misconduct and which might ultimately inform the decision to dismiss and whether in such circumstances it will be necessary for the employer to send a new Step 1 statement.  In a somewhat unusual case, in the case of Premier Foods PLc  v  Garner [UKEAT/0389/06], the employer identified new evidence on appeal that is used to increase the sanction of a final written warning to a dismissal.  The Employment Appeal Tribunal found the employer should have started the Disciplinary and Dismissal Procedure again on the particular facts of the case.

 

However, in the case of Silman  v  ICTS (UK) Ltd [UKEAT/1060/05], Elias P, as he then was, found it was not necessary in every such situation:-

 

“22.     ... The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal prior to the matter ending up in litigation before the Employment Tribunal.  It is not to create unnecessary technical hurdles for either employer or employee.  It will frequently happen in the course of a disciplinary hearing that the evidence emerging will identify potentially disciplinary conduct which, although closely related to the original alleged misconduct is a variation of it.  That, it seems to us, is precisely the position here.  There is very little difference between the original complaint, which was unauthorised absence and the misuse of company time which stemmed from the appellant sitting in his car and not effectively carrying out work for the benefit of the company.  In both cases the essence of the complaint is that no work is being done for the company.  Whether that is because the employee is at home or sitting in his car is of no real materiality, so it seem to us.  Shifts in the focus of the case will not lead to an obligation for the employer to write missives on each occasion.  Of course, there will be cases where the employer wishes to deal with a quite distinct act of misconduct which has emerged at some stage as a result of the disciplinary or investigative process for earlier alleged acts of misconduct.  In those circumstances, it would be necessary to comply with the procedures, so that the employee knows in advance precisely what case he has to meet, to seen a fresh statement in writing.”       [tribunal’s emphasis]

 

3.13    In relation to the Step 2 meeting, Employment Appeal Tribunal in Alexander considered the nature of the information the employer must give to the employee in order to inform him of the ‘basis’ for the concerns in the Step 1 statement.  In particular, it noted the following:-

 

“(i)       To comply with Step 2, the information does not need to be in writing and can be given orally.                                                   [Paragraph 39]

 

 (ii)       The information is ‘an explanation ... as to why the employer is contemplating dismissing that particular employee’.       [Paragraph 41]

 

(iii)       In misconduct cases, the information required involves ‘putting the case against the employee’.  This does not require ‘detailed information’ but ‘sufficient detail ... to enable the employee properly to put forward his side of the story.”                                         [Paragraph 40]

 

As noted above, it may be permissible for a Step 2 requirement to be complied with before a Step 1 requirement; thus the stages of the statutory procedure are not necessarily sequential.  However, failure to comply with the Step 2 requirement cannot be cured at the Step 3 appeal; (see Davies  v  Farnborough College of Technology, Paragraph 19 [2008] IRLR 14).  In Davies, Burton J, in a case relating to dismissal for redundancy, said it was necessary to give sufficient information to allow the employee both to understand and to challenge why it was proposed to dismiss him for redundancy. 

 

In the YMCA Training case it was held, in relation to the requirement to inform the employee of the decision, the word ‘after’ in the Step 2 requirement does not preclude giving the decision verbally at the end of the meeting itself.  Similarly, notification of the right of appeal can also be given verbally and also does not require to be in writing (see Aptuit (Edinburgh) Ltd  v  Kennedy).

 

Again, in view of the absence of any relevant decisions by the Court of Appeal in Northern Ireland, other than the case of Lewis  v  McWhinney’s Sausages Ltd, referred to above, in relation to the statutory dismissal procedures, the tribunal considered it relevant to consider and follow, as appropriate, the various decisions of the Employment Appeal Tribunal and Court of Appeal in England and Wales, as referred to above, when considering the proper interpretation of the said statutory dismissal procedures and, in particular, the three step process referred to in the said procedures.

 

3.14    Following the introduction of the new statutory dismissal procedures, Article 130A(1), as set out above, provided a dismissal was automatically unfair if the new procedures were not followed. 

 

3.15    Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey  v  AE Dayton Services Ltd [1988] ICR 344 (‘Polkey’).  However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1).  Article 130A(2) of the 1996 Order therefore is only of application  where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than the statutory dismissal procedures (see also Paragraph 3.25 and following). 

 

3.16    In relation to the claimant’s claim of ‘ordinary’ unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, it has long been established that the burden is on the respondent to establish the reason relied upon by it.  The question of whether it did in fact justify the dismissal requires the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order.  (See further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 8 and Mental NHS Trust  v  Sarkar [UKEAT/0479/08], DSG Retail Ltd  v  Mackey [2013] UKEAT/0054/13; and Singh  v  DHL Services [2013] UKEAT/0462/12) where it is now long established in case law in relation to the issue of fairness, as set out in Article 130(4) – 6 of the 1996 Order, there is no burden of proof on any party, it is a ‘neutral burden’ of proof.

 

3.17    In relation to a case where the reason for the dismissal is found to relate to the conduct of the claimant, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the tribunal, as set out above, then has to determine whether the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously. 

 

            Applying the dicta, which originated in the well-known case of British Home Stores Ltd  v  Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-

 

“(i)       whether the employer had a genuine belief in the guilt of the employee;

 

                        (ii)        whether it had reached that belief on reasonable grounds;

 

                        (iii)       whether this was following a reasonable investigation; and

 

(iv)       whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”

 

            In Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was made clear ‘the range of reasonable responses test’ 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.  Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

 

In Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-

 

            “ …

 

(1)       the starting point should always be the words of [Section 57(3)] themselves;

 

(2)       in applying the Section the 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.”

 

In the case of JJ Food Service  v  Kefil [2013] IRLR 850, the Employment Appeal Tribunal succinctly expressed the four stage analysis to be carried out by a tribunal with a dismissal purportedly for misconduct:-

 

“Thus it asked whether the employer had a genuine belief in the misconduct, secondly whether it had reached that belief on reasonable grounds, thirdly whether that was following a reasonable investigation and, fourthly whether the dismissal of the claimant fell within the band of reasonable responses in the light of that misconduct.”

 

Similarly, Mummery LJ in London Ambulance Service NHS Trust  v  Small [2009] IRLR 563 stated:-

 

“The essential terms of the enquiry were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct.  If satisfied that the Trust’s fair conduct of the dismissal in those respects, the ET then had to decided whether the dismissal of Mr Small was a reasonable response to the misconduct.”

 

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision.  As Viscount Dilhourne said in W Devis & Sons Ltd  v  Atkins [1977] IRLR 314:-

 

“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”

 

As confirmed by that decision, the fairness of the decision falls to be judged on the basis of the facts known to the employer at the time of the decision to dismiss (see also Mummery LJ’s observation in Small).

 

            In W Weddel & Company Ltd  v  Tepper [1989] IRLR 96, it was held that:-

 

“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’.  That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances.  If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”

 

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin  v  Citybus Ltd [2008] NICA 42 and Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council  v  McCann [2013] NICA 7 and Gould  v  Regency Carpet Manufacturing Ltd [2013] NICA 26. 

 

            As Underhill LJ emphasised in Stuart  v  London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test.  He acknowledged that different tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-

 

 

“ ...       two tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”

 

            In Shrestha  v  Genesis Housing Association Ltd (2015) EWCA Civ 94, the Court of Appeal, when considering issues relating to the ‘reasonable investigation test formulated in Burchell, in a case where the employer did not investigate each line of defence, said:-

 

  “23    To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole.  Moreover, in a case such as the present it is misleading to talk in terms of distinct lines of defence.  The issue here was whether the appellant had over-claimed mileage expenses. His explanations as to why the mileage claims were as high as they were had to be assessed as an integral part of the determination of that issue. What mattered was the reasonableness of the overall investigation into the issue.

 

  30      .... The Employment Tribunal directed itself correctly as to the legal test.  In applying that test, it considered what the employer did by way of investigation and why the employer did not go further. It was fully entitled to reach the conclusion that a reasonable investigation had been carried out (tribunal’s emphasis).

 

In Newbound  v  Thames Water Utilities Ltd [2015] EWCA Civ 677, after reminding itself of the terms of the statute which directs the tribunal to decide the question whether the employer has acted reasonably or unreasonably in deciding to dismiss ‘in accordance with equity and the substantial merits of the case, the Court of Appeal emphasised, in Paragraph 61 of the judgment, ‘the band of reasonable responses is not infinitely wide and consideration of the case was not a matter of procedural box ticking; and a tribunal in an appropriate case may find a dismissal outside the band of reasonable responses without being accused of placing itself in the position of the employer (see further Bowater, as set out below).  On the facts, the Court of Appeal rejected the respondent’s contention that an Employment Tribunal should give a very wide margin of appreciation to the employers on matters of health and safety and it held there was no special rule about assessing the reasonableness of a dismissal on conduct grounds where the alleged misconduct involves a breach of health and safety requirements.

 

In London Ambulance NHS Trust  v  Small [2009] IRLR 563, Mummery LJ                 re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer.  In the case of Foley  v  Post Office [2000] ICR 1283, Mummery LJ gave Employment Tribunals guidance as to what constitutes such substitution and what is an inevitable alteration by a Employment Tribunal of the judgment made by an employer.  He said this:-

 

“In one sense it is true that, the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer.  But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to ‘reasonably or unreasonably’ and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances.  In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not.”

 

In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater  v  Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-

 

“The employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

 

            Burnton LJ also said in Bowater:-

 

“The appellant’s conduct was rightly made the subject of disciplinary action.  It is right that the ET, the EAT and this court should respect the opinions of the experienced professionals who decided that summary dismissal was appropriate.  However, having done so, it was for the ET to decide whether their views represented a reasonable response to the appellant’s conduct.  It did so ... .”

 

In JJ Food Service  v  Kefil (2013) IRLR850, Langstaff P, considered this issue of substitution:-

 

“17.     A substitution mindset is all too easy to allege.  There is a great danger which is readily apparent to those of us who sit day by day in this Tribunal that employers who do not like the result which a Tribunal has reached, but cannot go so far as to say it is necessarily perverse, seek to argue that the very fact of the result in the circumstances must indicate a substitution.  That is not, in our view, a proper approach...”

 

Langstaff P, then referred to section 98(4) of the Employment Rights Act 1996 (ie Article 130(4) of the 1996 Order referred to previously) and concluded:

 

“18.     In other words, the very business of the Employment Tribunal is considering whether once the employer has established the reason for the dismissal the decision to dismiss for that reason was fair or unfair.  In order to see if a Tribunal has stepped beyond the permissible and gone outside the scope of its duty as set out in section 98(4), it is necessary to have regard to a Tribunal’s decision as a whole, but what one is looking for is some indication that the Tribunal has, in dealing with a complaint of unfair dismissal, asked not whether what the employer did was fair but asked instead what it would have done in the light of the basic and underlying facts.”           [Tribunal’s emphasis] 

 

Further helpful guidance on this ‘substitution mindset issue is contained in the guidance of the Court of Appeal in the case of Graham  v  Secretary of State for Work & Pensions (Jobcentre Plus) [2012] IRLR 759 when Aikens LJ stated:-

 

“35.     ... once it is established that employer's reason for dismissing the employee was a ‘valid’ reason within the statute, the ET has to consider three aspects of the employer's conduct.  First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief.

 

36.      If the answer to each of those questions is ‘yes’, the ET must then decide on the reasonableness of the response by the employer.  In performing the latter exercise, the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the ET's own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found of the particular employee.  If the employer has so acted, then the employer's decision to dismiss will be reasonable.  However, this is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse.  The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer.  The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable employer might have adopted’.  An ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process) and not on whether in fact the employee has suffered an injustice ...

 

This guidance was expressly endorsed by the Court of Appeal in the case of Tayeh  v  Barchester Healthcare [2013] IRLR 307 [Paragraph 47].

 

3.18    In the event of an admission of misconduct, it may be appropriate to restrict the nature and level of any investigation carried out and much may depend on when the admission is made and the terms of same (see further Royal Society for the Protection of Birds  v  Croucher [1984] IRLR 425).  As was made clear in the judgment, this only will arise in limited circumstances:-

 

“Here there was no question of suspicion or of questioned belief; here the dishonest conduct was admitted.  Therefore there was very little scope, therefore, for the kind of investigation to which this appeal tribunal was referring in Burchell’s case; investigation that is to, designed to confirm suspicion or clear up whether or not a particular act of misconduct has occurred ... .”

 

            In Boys and Girls Welfare  v  MacDonald [1996] ICR 693, it was confirmed that Croucher laid down an approach applicable to cases were there is no conflict on the facts.  In this context, and having regard to the ‘reasonable responses’ test, it may be necessary for a tribunal to consider whether there was a conflict on the evidence before the employer and whether an employer acted within the range of a reasonable employer in limiting the scope of its investigation in the light of those admissions.  There may be no issue of the fact of the incident in question had occurred; but in a question of dishonesty/theft, for example, questions of intention/ subjective mind of an employee accused of misconduct may also arise and require to be considered (see later re: dishonesty).

 

In a recent decision, in the case of CRO Ports London Ltd  v  Wiltshire [UKEAT/0344/14], HH Judge Eady QC, confirmed that, applying Croucher, where the employer’s decision is based on admissions on the part of an employee during the internal processes, it would be difficult to see why it would not be in the range of reasonable responses for it to conclude it was unnecessary to carry out further investigation.  In doing so, the tribunal has to consider the significance of any such admissions made by the claimant from the perspective of the respondent at that relevant time.

 

In Linfood Cash and Carry Ltd  v  Thomson and Another [1989] IRLR 235, approved by the Court of Appeal in Morgan  v  Electrolux Ltd [1991] IRLR 89, it was held that where the credibility of a witness before a tribunal is at issue, the relevant question is whether the employers, acting reasonably and fairly in the circumstances, could properly accept the facts and opinions which they did.  The evidence is that given during the disciplinary procedures and not that given before the Employment Tribunal.  Indeed, if the tribunal is to reject an employer’s view of the credibility of witness evidence, the tribunal would need to provided logical and substantial grounds.  As seen in the recent decision of the Employment Appeal Tribunal, in case of Black Country Partnership NHS Foundation Trust  v  Herlock-Green [2015] UKEAT/0035/15, an Employment Tribunal, in light of the above authorities, has to be careful not to substitute its own evaluation of a witness – particularly when it had not heard the witness itself, for that of the employer. 

 

3.19    As was made clear in John Lewis Plc  v  Coyne [2001] IRLR 139, a reference in disciplinary rules to dishonesty normally being regarded as serious misconduct, which would normally lead to dismissal, indicates that dismissal is not an inevitable consequence of such conduct.  The duty on the employers to act fairly and reasonably requires that they should investigate the seriousness of the offence in the particular case.

 

In Strouthos  v  London Underground Ltd [2004] IRLR 636, the Court of Appeal emphasised that it was important to form the disciplinary charge carefully in order to ensure that a misconduct dismissal was for a matter charged, which had been fully investigated and to which the employee has had a proper opportunity to respond:-

 

“An employee should only be found guilty of the offence with which he has been charged.  It is a basic proposition in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge.  ...  Care must be taken with the framing of a disciplinary charge, and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited.  ...  Where care has clearly been taken to frame a charge formally and put it formally to an employee ... the normal result must be that it is only matters charged which can form the basis for a dismissal. ... .”

 

3.20    In a recent decision in the Court of Appeal in Davies  v  Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-

 

“It is not for ET to conduct a primary fact-finding exercise.  It is there to review the employer’s decision.  Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)

 

Further, in Turner  v  East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-

 

“For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment tribunal.  In spite of the requirement in Section 98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast.  Other claims – for example discrimination claims – based on the same or related facts, do attract a full merits hearing.  But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in Paragraphs 16 to 22 above.”

 

In those paragraphs of his judgment, referred to by Sir Stephen Sedley,                       Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr  v  Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows (Paragraph 78):-

 

                        “ …

 

(4)      In applying that sub-section, the employment tribunal must decide on the reasonableness of the employer’s decision to dismiss for the ‘real reason’.  That involves a consideration, at least in misconduct cases, of three aspects of the employer’s conduct.  First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief.  If the answer to each of those questions is ‘yes’, the employment tribunal must then decide on the reasonableness of the response by the employer.

 

 (5)     In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found on the particular employee.  If it has, then the employer’s decision to dismiss will be reasonable.  But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse. 

 

 (6)     The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer.  The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable’ employer might have adopted.

 

 (7)     The particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.

 

 (8)     An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.”

 

Further, Lord Justice Elias emphasised ‘the band of reasonable responses test’ is not a subjective test and it is erroneous so to describe it – “it provides an objective assessment of the employer’s behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly”. 

 

Elias LJ also at Paragraphs 20 – 22 of his judgment observed:-

 

“(20)    When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations.  These are part of all the circumstances of the case.  So if the impact of a dismissal for misconduct will damage the employee’s opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.

 

(21)     In A  v  B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-

 

‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’

 

This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust  v  Roldan [2010] ICR 1457, Paragraph 13.

 

(22)     The test applied in A  v  B and Roldan is still whether a reasonable employer could have acted as the employer did.  However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.”

 

(See also Crawford  v  Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).

 

In a recent decision of the Employment Appeal Tribunal, in the case of Mitchell  v  St Joseph’s School, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-

 

“The point is that the duty of the employment tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer.”

 

3.21    In the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, it is provided in relation to dealing with gross misconduct as follows:-

 

“38      If an employer considers an employee guilty of gross misconduct and potentially liable for summary dismissal, it is still important to establish the facts before taking any action.  The short period of suspension with full pay may be helpful or necessary, although the suspension should be imposed only after careful consideration and should be kept under review.  It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any             pre-judgment ...

 

 39       It is a core principle of reasonable behaviour that employers should give employees the opportunity of putting their case at a disciplinary meeting before deciding whether to take action.  This principle applies as much to cases of gross misconduct as it does to ordinary cases of misconduct for unsatisfactory performance thus the three step procedure applies to gross misconduct cases ... .”

 

Further, in Paragraph 8 of the said Code, it is provided in relation to small businesses:-

 

“In deciding cases of unfair dismissal tribunals will take account of an employer’s size and administrative resources when deciding if he/she acted reasonably.  In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code.  However, all organisations, regardless of size, must follow the minimum statutory dismissal and disciplinary procedure where these are applicable.”

 

            Under the Code it is stated:-

 

“A failure to follow any part of this Code does not, in itself, make a person or organisation liable to proceedings.  However, industrial tribunals shall take this Code into account when considering relevant cases  ...  Employers and employees should be aware that failure to follow any aspect of the statutory dismissal and disciplinary procedure will result in an industrial award being adjusted to reflect this failure ... .”

 

            Under Paragraph 30 of the Code it is further stated:-

 

“It is important for employers to bear in mind that before they dismiss an employee or impose a sanction such as loss of seniority or loss of pay, they must, as a minimum, have followed the statutory dismissal and disciplinary procedures..  The standard statutory procedure summarised in the box below requires the employer in almost all cases to:

 

            Step 1 :

 

Write to the employee notifying him/her of the allegations against him/her and invite him/her to a meeting to discuss the matter;

 

            Step 2 :

 

Inform the employee of the basis of the allegations before holding the meeting to discuss this – at which the employee has the right to be accompanied – and notify the employee of the decision;

 

            Step 3 :

 

If the employee wishes to appeal, hold an appeal meeting at which the employee has the right to be accompanied and inform the employee of the final decision.”

 

3.22    Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness.  As the Court of Appeal held in Taylor  v  OCS Group Ltd [2006] EWCA Civ 702:-

 

“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 a 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 deficiencies at an early stage.”

 

            In a recent decision, the Employment Appeal Tribunal, in the case of Holt  v  Res On Cite Ltd [2014] UKEAT/0410 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 (see further First Hampshire & Dorset Ltd  v  Parhar [2012] UKEAT/0643]).

 

            In McMaster  v  Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

 

The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing.  As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be adverse to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”

 

See further West Midlands Co-Operative Society Ltd  v  Tipton [1986] AC 536)  In London Probation Board  v  Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

 

... the whole point of internal appeals is to allow for bad or unfair decisions to be put right.”

 

In Adeshina  v  St George’s University Hospitals NHS Foundation Trust & Others [UKEAT/0293/14], the Employment Appeal Tribunal confirmed, as set out in Taylor, the tribunal, when looking at the question of fairness, was bound to consider the process overall. 

 

In the case of Blackburn  v  Aldi Stores [2013] UKEAT/0185, a case of constructive unfair dismissal, where it was held the employee had been denied an effective appeal, where it was decided by the same manager who took the original decision, the Employment Appeal Tribunal emphasised that a right to an appeal is a significant right in the employment context.  As held in Tipton, a failure to hold a proper appeal can render a dismissal unfair and such a failure will be more significant where the procedure is contractual.

 

Each cases clearly depends on its own facts and in the case of any previous involvement in the process, it was recognised in Adeshina much would depend on the precise nature of the role constituting the previous involvement and the context in which it arose.  The case also illustrates the difficulties which can arise where the subject-matter of the disciplinary process involves a member of the senior management team and witnesses, including other senior managers; where previous dealings may have inevitably arisen.

 

3.23    Under Article 130(2)(b) of ERO 1996, a dismissal is capable of being fair if it is for a reason which ‘relates to the conduct of the employee’.  The reference to conduct is in general terms and it does not necessarily have to amount to gross misconduct. Gross misconduct is not defined in the legislation.  In Chhabra  v  West London Mental Health Trust [2014] ICR 194, the Supreme Court stated it should be conduct which would involve a repudiatory breach of contract – namely conduct undermining trust and confidence which is inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment (see further Neary  v  Dean of Westminster [1999] IRLR 288 approved by the Court of Appeal in Dunn  v  AAH Ltd [2010] IRLR 709 it was held:-

 

“conduct amounting to gross misconduct justifying summary dismissal must so undermine terms and conditions which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment.  Whether particular misconduct justifies summary dismissal is a question of fact.  The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis à vis the employer must all be considered in determining the extent of the duty of trust and the seriousness of any breach thereof.”

 

In Sandwell & West Birmingham Hospitals NHS Trust  v  Westwood [2009] UKEAT/0032, it was held that gross misconduct raises a mixed question of law and fact and, as a matter of law, it connotes either deliberate wrongdoing or gross negligence.  (Wilson  v  Racher [1974] ICR 428.)  It is for the tribunal, without falling into the ‘substitution mindset’ (see London Ambulance Service  v  Small [2009], referred to previously, to asses whether the conduct in question was such as to be capable of amounting to gross misconduct). 

 

Even, if it is found the conduct did amount to gross misconduct, it is also necessary to consider whether dismissal is a fair sanction.

 

In determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer.  As stated by Philips J in Trust Houses Forte Leisure Ltd  v  Aquilar [1976] IRLR 251:-

 

“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss.  It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible.”

 

In the case of Brito-Bubapulle  v  Ealing Hospital NHS Trust [2013] UKEAT/0358/12, Langstaff P has emphasised that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses and a tribunal must assess whether it was reasonable in all the circumstances to dismiss an employee for such gross misconduct.  This requires a tribunal to consider any relevant mitigating factors which might mean dismissal was not reasonable.  Such factors might include, for example, length of service, the fact that such service was previously unblemished and the consequences of dismissal for future employment (see further Roldan, referred to above, Trusthouse Forte (Catering) Ltd  v  Adonis [1984] IRLR 382).

 

            In the case of Mears Ltd  v  Brockman (2014) UKEAT 0243/14, in a case where the Employment Tribunal, on the particular facts of the case, found that written or final written warning would have been within the range of reasonable responses, whereas dismissal was outside that range, the Employment Appeal Tribunal expressed some concern that it was moving “into dangerous territory for an ET to allow that a final written warning is within the range whereas dismissal is outside.  Such judgment calls might well be said to be what the range of reasonable responses are all about”.

 

In Strouthos, length of service was held to be a factor which an Employment Tribunal may properly take into account in deciding whether the decision of an employer to dismiss in reaction to the employee’s conduct was an appropriate one. 

 

In Paul  v  East District Health Authority [1995] IRLR 305, it was held:-

 

“An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned.  The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely.  Thus an employee who admits the conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely.”

 

3.24    Each case will be decided on its own facts.  Interestingly, in Newbound  v  Thames Water Utilities Ltd [2015] EWCA Civ 677, a case involving breach of health and safety requirements, the Court of Appeal upheld a tribunal which found that the claimant on the facts had admitted he had not worn breathing apparatus, at the relevant time, but he had done so after exercising a discretion based on experience.  The Court of Appeal found that his explanations for not wearing the apparatus was in the nature of a plea in mitigation and agreed with the tribunal it was misleading to describe this as showing a lack of remorse; and further it could not be further from the example in Paul of the argumentative or aggressive employee, let alone the conspiracy theorist.  The Court of Appeal also confirmed that in assessing the reasonableness of the decision to dismiss, ‘length of service is not forbidden territory for the Employment Tribunal’ and a service of 34 years with a clean disciplinary record was a relevant factor to be taken into account.

 

In Paragraph 20 of the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, referred to previously, it is stated:-

 

“Before making any decision the employer should take account of the employee’s disciplinary and general record, length of service, actions taken in any previous similar case within the organisation, the explanations given by the employee and – most important of all – whether the severity of any intended disciplinary action is proportionate and reasonable in all the circumstances.  In considering the circumstances employers should take account of, in particular, the extent to which standards have been breached ... .”

 

3.25    In a recent decision of the Employment Appeal Tribunal in the case of Ramphal  v  Department for Transport [2015] UKEAT/0352/14 the eat, applying the decision of the Supreme Court in the case of Chhabra  v  West London Mental Health NHS Trust [2014] ICR 194, gave some helpful guidance, in a case involving the involvement of Human Resources in giving advice to a dismissing or investigating officer.  The facts are clearly very different to those in the present proceedings; but the tribunal considered that the guidance was of relevance to the conduct of all steps in a disciplinary procedure and was not restricted to decisions about dismissal at the conclusion of a disciplinary hearing:-

 

“56      ...  I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will  be taken by the appropriate officer, without having been lobbied by other parties as to the finding he should make as to culpability and that he should be given notice of any changes in the case he has to meet so that he can deal with them and also given notice of representation made by others to the Dismissing Officer that go beyond legal advice and advice on matters of process and procedure.  It is far from clear to what extent Mr Ramphal was aware of changes made to the case against him as a result of interventions from Human Resources ... .”

 

3.26    Under Article 157(1) of the 1996 Order, the amount of a compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.  In having regard to what the employee has lost in consequence of the dismissal, it may be necessary to determine what would have occurred but for the dismissal.  This may require an assessment as to whether the employment would have ended but for the dismissal. 

 

In the well-known House of Lords decision in Polkey  v  AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal.  Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile. 

 

            However, although the tribunal might find that dismissal was unfair, a tribunal, following Polkey, was able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed.  In the case of Polkey it therefore required the employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.  However, as seen above, a ‘Polkey’ reduction is not confined to a dismissal rendered unfair purely by procedure failure (as happened in the facts of Polkey); it can also apply in a wider range of cases, depending on the facts found by the tribunal.

 

3.27    Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

 

            Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly.  The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures.  The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden  v  Manor Surgery [2007] IRLR 17).

 

3.28    However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with.  Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt  v  CAFCSS [UKEAT/0362/07]).  As was made clear in the case of Goodin  v  Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal.  If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair.  Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

 

3.29    In Software 2000 Ltd  v  Andrews [2007] UKEAT/0533/06, Elias J gave some useful guidance in carrying out the assessment referred to above:-

 

“(1)      In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

(2)       If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.  (He might, for example, have given evidence that he had intended to retire in the near future.)

 

(3)       However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

(4)       Whether that is the position is a matter of impression and judgment for the tribunal.  But in reaching that decision the tribunal must direct itself properly.  It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise.  The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

... .”

 

In considering issues relating to ‘Polkey’ deductions in the case of Hill Ltd  v  Governing Body of Great Tey Primary School, Langstaff P said:-

 

“24.     A ‘Polkey’ deduction has these particular features.  First, the assessment of it is predictive : could the employer fairly have dismissed and, if so, what were the chances the employer would have done so?  The chances may be at the extreme (certainly that it would have dismissed or certainly that it would not) though more usually will fall somewhere on a spectrum between these two extremes.  This is to recognise the uncertainties.  A tribunal is not called upon to decide the question on balance.  It is not answering the question what it would have done if it were the employer : it is assessing the chances of what another person (the actual employee) would have done.”

 

In the case of Dev  v  Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach but also stated:-

 

“6.        A tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened.  To ask what would have happened asks for a decision, effectively, on the balance of probability, with a straight yes or no answer.  The second looks at the matter as one of assessment of chances within a range of 0% - 100%.  It is well established that the latter is the correct approach ... (see further Ministry of Justice  v  Parry [2013] ICR 311 and Hill Ltd  v  Governing Body of Great Tey Primary School ...).”

 

            In Brinks Ireland Ltd  v  Hines [2013] NICA 32, Girvan LJ followed, with approval, the guidance of Elias J in Software 2000 Ltd  v  Andrews.

 

In Software 2000, Elias J also provided guidance, with reference to the assessment involved pursuant to Article 130A(2):-

 

“The s.98A(2) (ie Article 130A(2) in NI) and Polkey exercises run in parallel and will often involve consideration of the same evidence but they must not be conflated ... .”

 

(Section 98A(2) of the Employment Rights Act 1996 no longer applies in Great Britain.)

 

3.30    In the case of Morrison  v  Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

 

“(i)       the tribunal must take a broad common sense view of the situation;

 

(ii)       that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

 

(iii)      what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

 

(iv)      the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”

 

In Allders International Ltd  v  Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

 

In a recent decision of the Employment Appeal Tribunal in the case of Steen  v  ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% deduction for contributory fault.  He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and not rely the employer’s view of what he had done but the employer’s assessment of how wrongful that act was; and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it.  If the identified conduct which the tribunal considers blameworthy did not to any extent cause or contribute to the dismissal there can be no reduction, no matter how blameworthy in other respects the tribunal might think the conduct to have been.  Langstaff P noted that Polkey deductions and deductions for contributory fault are approached on different basis and do not directly overlap:-

 

“That is because the focus in a Polkey decision is predictive, it is not historical, as is the focus when establishing past contributory fault as a matter of fact.  Second, Polkey focuses upon what the employer would do if acting fairly.  Contributory fault is not concerned with the action of the employer but with the past actions of the employee.  A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”

 

3.31    Article 156(2) of the 1996 Order, provides, in relation to the issues of the amount of a basic award and contribution on the part of the claimant:-

 

                                    “Where the tribunal considers any conduct of the complainant before the dismissal .... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” 

 

Article 157(6) of the 1996 Order provides in relation to the issues of the amount of a compensatory award and contribution on the part of the claimant:-

 

            “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

In the Northern Ireland Court of Appeal, in the case of GM McFall & Company              Ltd  v  Curran (1981) IRLR455, which would be normally binding on this tribunal, it was held that the general rule is that both the basic and compensatory awards should be reduced by the same amounts.  It should be noted, however, that the relevant legislation in Northern Ireland at the time of that decision was differently worded to that now seen in the 1996 Order.  In particular, the provisions relating to both a basic award and a compensatory award were in similar terms to that now seen in Article 157(6) of the 1996 Order and both provisions, at that time, therefore had reference to causation/contribution.

 

Now, Article 156(2) and Article 157(6) of the 1996 Order, as set out above, are in similar terms to those set out in Sections 122(2) and 123(6) of the Employment Rights Act 1996, which applies in Great Britain.  As has been made clear in a recent decision of Langstaff P in the case of Steen  v  ASP Packaging Ltd (2013) UKEAT/0023/13:-

 

“The two sections are subtly different.  The latter calls for a finding of causation.  Did the action which was mentioned in Section 123(6) cause or contribute to the dismissal to any extent?  That question does not have to be addressed in dealing with any reduction in respect of the basic award.  The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent.  Both sections involve the consideration of what is just and equitable to do.”

 

He also points out that, in applying the provisions of Section 123(6) if the conduct which it has identified and which it considers blameworthy did not cause or contribute to the dismissal to any extent, then there can be no reduction, pursuant to Section 123(6), no matter how blameworthy in other respects the tribunal might consider the conduct to have been.  If it did cause or contribute to the dismissal, then issues arise to be determined in relation to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

 

Langstaff P emphasises that:-

 

“A separate questions arises in respect of Section 122(2) (the basic award) where the tribunal has to ask whether it is just and equitable to reduce the amount of the award to any extent.  It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award but it does not have to do so.”        

 

            So, in light of the foregoing, it would appear that, despite the change in the wording of the legislative provisions in Northern Ireland since the decision of the Court of Appeal in Northern Ireland, in GM McFall & Company Ltd, was decided, in most cases the same result would still be achieved; albeit it must be remembered that, in relation to the compensatory award, issues of causation/contribution have to be considered before any issues of reduction arise.  This, for the reasons set out above, is unlike the position in relation to the basic award.  However, as seen above, in most cases, the same reduction will continue to be applied to the basic and compensatory awards.

 

3.32    The amount of any reduction of the basic and/or compensatory award (see before), by a percentage on just and equitable grounds, can be as much as 100%; but such a sizeable reduction, although legally possible, is rare/unusual/exceptional (see Lemonious  v  The Church Commissions (2013) UKEAT/0253/12); and, if such a reduction is made by a tribunal, it must be justified by facts and reasons set out in the decision.  In any event, the factors which help to establish a particular percentage should be, even if briefly, identified (see further Steen  v  ASP Packaging (2013) UKEAT/0023/13).

 

3.33    In relation to the issue of compensation, where a claimant has obtained income from a new job, following an unfair dismissal, the Employment Appeal Tribunal, in the case of Whelan  v  Richardson [1988] IRLR 144, summarised the approach to be taken by tribunals; albeit emphasising that tribunals had a discretion to do what was appropriate in individual cases:-

 

“(1)      The assessment of loss must be judged on the basis of the facts as they appear at the date of assessment hearing (‘the assessment date’).

 

 (2)      Where the (claimant) has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate in the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the Employment Appeal Tribunal will consider for how long the loss is likely to continue so as to assess future loss. 

 

 (3)      The same principle applies where the (claimant) has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal.  He will be compensated on the basis of full loss until the date in which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings. 

 

 (4)      Where the (claimant) takes alternative employment on the basis it will be for a limited duration, he will not be precluded from claiming loss to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

 

 (5)      As soon as the (claimant) obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases.  It cannot be revived if he then loses that employment either through his own action or that of his now employer.  Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment.  The chain of causation has been broken.”

 

This guidance was described as helpful by the Court of Appeal in Dench  v  Flynn & Partners [1998] IRLR 653, although the Court considered that the obtaining of permanent employment at the same or a greater salary would not in all cases break the chain of causation.  The Dench decision was applied in Cowen  v  Rentokil Initial Facilities Service (UK) Ltd [2008] AER (D) 70.  Further, in a recent decision of the Employment Appeal Tribunal, in the case of Commercial Motors (Wales) Ltd  v  Hawley [2012] UKEAT/0636, the Employment Appeal Tribunal cited with approval the case of Dench and, in particular, the judgment of Beldam LJ, when he stated at Paragraph 19 of his judgment:-

 

“19      ... no doubt in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at a equivalent or higher level of salary or wage than the employee enjoyed when dismissed.  But to regard such an event is always and in all case putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.

 

 20       Although causation is primarily a question of fact the principle to be applied in deciding whether the connection between the cause, such as unfair dismissal and its consequences, is sufficient to find a legal claim to a loss of damage, is a question of law.  The question for the tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss when she was consequently dismissed by her new employer with no right of compensation after a month or two in her new employment.  To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat the effective cause that which is simply closest in time.”

 

In Salvesen Logistics Ltd  v  Tate [UKEAT/689/98], the Employment Appeal Tribunal made clear that the chain of causation will not be broken where it is clear from the outset that the employment would be on a temporary basis. 

 

3.34    In relation to the issue of mitigation of loss, there is no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is              well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe  v  Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment.  In the case of Wilding  v  British Telecommunications PLc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who is refused an offer of employment, has breached the duty to mitigate:-

 

“(a)      The duty of the employee is to act as a reasonable person unaffected by the prospect of compensation from her employer.

 

 (b)      The onus is on the former employer as wrongdoer to show that the employee has failed to mitigate by unreasonably refusing the job offer.

 

 (c)       The test of reasonableness is an objective one based on the totality of the evidence.

 

 (d)      In applying that test, the circumstances in which the offer is made and refused, the attitude of the former employer, the way in which the employer had been treated, in all the surrounding circumstances, including the employee’s state of mind, should be taken into account.

 

 (e)      The tribunal must not be too stringent in expectations of the injured party (that is, the employee).

 

The guidance in set out in the Wilding case has been applied in a number of recent decisions by the Employment Appeal Tribunal; but each relate to their own particular facts (see further Harris  v  Tennis Together Ltd [2009] UKEAT/0358/08, Hibiscus Housing Association Ltd  v  Mackintosh [2009] UKEAT/0534/08, and Beijing Ton Ren Tang (UK) Ltd  v  Wang [2009] UKEAT/0024/09.”

 

The state of the labour market can be relevant in deciding whether an employee has made reasonable efforts to find a new job (see Korn Employment Tribunals Remedies, Paragraphs 13 – 28).  It was held HG Bracey  v  Kes [1973] IRLR 210 that the duty of mitigation does not require the dismissed employee to take the first job that comes along, irrespective of pay and job prospects. 

 

            In the recent decision of Look Ahead Housing and Care Ltd  v  Chetty (2014) UKEAT/0037 Langstaff emphasised, in relation to the burden of proof by the employer:-

 

“But without there being evidence (whether by direct testimony or by inadequate answers given by a claimant in cross-examination) adduced by the employer on which a tribunal can be satisfied, on the balance of probabilities, that the claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed”.       [tribunal’s emphasis]

 

4.1       In light of the facts, as found by the tribunal, and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

4.2       The tribunal, firstly, had to consider and determine whether it had jurisdiction to determine the claimant’s claim.  This issue depended upon the tribunal’s conclusions in relation to whether the claimant’s claim was presented to the tribunal before the end of the period of three months beginning with the effective date of termination.  Therefore, it was necessary for the tribunal to determine what was the effective termination of the claimant’s employment with the respondent.  That date is a statutory construct and has to be objectively determined (see Fitzgerald).

 

            Under the respondent’s written disciplinary policy, in the case of dismissal, a Regional HR Manager must be contacted or Group HR if the Regional Manager is unavailable.  If dismissal is being considered, the senior manager, in particular, must advise the Regional HR Manager of the action to date and his/her reasons for dismissal.  Only then, under the procedure, can the senior manager, having advised HR, as set out above, issue a Notice of Dismissal with reasons for dismissal, the date on which employment will terminate and the right of appeal.  There is no provision, under the policy, which allows a senior manager in the respondent to divert from this written procedure.  On the facts of this case, it is correct, that Mr Bruder orally told the claimant at the conclusion of the disciplinary hearing:-

 

“ ... the sanction I have decided on today is one of dismissal for gross misconduct and breach of confidence ... .”

 

            He did not say, as it was later suggested by Ms Anderson in evidence that he had said ‘with immediate effect’; rather the tribunal is satisfied he said ‘today as set out in the typed minutes.

 

The effective date of termination cannot be a matter of agreement between the parties.  Equally, the claimant is entitled to have the date determined by reference to the relevant procedures contained in the disciplinary policy, which it was not disputed applied to the claimant’s contract of employment with the respondent. 

 

Crucially, in the judgment of the tribunal, when Mr Bruder informed the claimant of his dismissal, at the conclusion of the disciplinary hearing, he had not contacted HR and obtained the relevant authority from HR, as laid down in the said policy.  In particular, under the policy it is only where the senior manager and Regional HR Manager/Group HR are satisfied gross misconduct has taken place that any dismissal can become effective.  Ms Anderson could have been the necessary contact; but, at the time, her role was that of note taker.  Indeed, Ms Anderson fairly and properly accepted, in evidence, at that time she only acted as note taker.  Mr Bruder subsequently contacted a relevant person in HR, someone else other than Ms Anderson, which allowed him then to issue the letter of 7 August 2014.  The letter of 7 August 2014, was sent by Mr Bruder, following the relevant contact with HR, stated:-

 

            “ ... you should be dismissed ... with immediate effect.”

 

It was only after the necessary authority had been obtained from HR and the letter sent could the termination of the claimant’s employment become effective.

 

Since the claimant did not receive the said letter until 8 August 2014, the effective date of termination in this particular case was therefore 8 August 2014 (see Gisda Cyf).  It was not disputed by the representatives that, if the tribunal determined the effective date of termination was 8 August 2014, or even 7 August 2014 as referred to the claimant in his claim form as the date his employment ended, his claim was in time; in circumstances where the claimant had presented his claim on 6 November 2014 to the tribunal.  The tribunal therefore had jurisdiction to determine the claimant’s claim. 

 

4.3       Even though the claimant did not expressly raise the issue of whether the respondent had complied with the statutory dismissal procedures and, if not, whether the dismissal was automatically unfair, pursuant to Article 130A of the 1996 Order, the tribunal was under a duty to consider it (see Venniri  v  Autodex).  In the Notice of the Disciplinary Hearing, dated 21 July 2014, the claimant was informed that, at the hearing, consideration would be given to claims of serious irregularities and breach of company policies.  It also warned of a possible dismissal, at the conclusion of the hearing.  It has to be noted that, at the conclusion of the disciplinary hearing, the claimant was dismissed for gross misconduct for serious fuel irregularities, breach of company policies and breach of trust and confidence.  Indeed, it was only in his oral decision, at the conclusion of the hearing, that Mr Bruder referred to breach of trust and confidence, which, as he admitted in evidence to the tribunal, only occurred to him during the course of the said hearing.  The issue for the tribunal was, by omitting in the Notice of Hearing, any reference to the claim/charge of breach of trust and confidence, had the respondent failed to comply with Step 1 of the said statutory dismissal procedures.  It will be necessary to again refer later in this decision to this issue of the late introduction of the claim/charge of breach of trust and confidence; but the tribunal not without some hesitation, and despite the said omission, concluded there was sufficient in the said Notice for compliance with Step 1 of the statutory dismissal procedures.  In doing so, it took into account the dicta referred to in Paragraph 3.11/3.12 of this decision and it concluded the Notice had stated sufficient in ‘broad/headline terms’ why the respondent was contemplating dismissing the claimant. 

 

4.4       In light of the foregoing, it was therefore necessary for the tribunal to consider whether the claimant’s dismissal was ‘ordinary’ unfair dismissal.  It was not disputed the reasons for the claimant’s dismissal by the respondent related to his conduct, which was a potentially fair reason for dismissal within the terms of Article 130(1) and (2) of the 1996 Order.  Therefore, it was necessary for the tribunal to determine whether the decision of the respondent to dismiss the claimant and the process in reaching that decision was fair and, in particular, it fell within the band of reasonable responses open to an employer on the facts of the case.  Every case is fact-sensitive and this case is no different (see further Iceland Frozen Foods Ltd  v  Jones and the other cases referred to in Paragraphs 3.17 – 3.20 of this decision).

 

4.5       The tribunal was satisfied the claimant was dismissed for gross misconduct in relation to serious fuel irregularities, breach of company policies and breach of trust and confidence.  In relation to the serious fuel irregularities and breach of company policies, there was no doubt that, in the relevant period, the subject-matter of the said charges, there were such fuel irregularities and breach of the company policies in relation to employee travel expenses and payment to staff for using their own cars.  In broad terms, the claimant did not dispute the factual basis of the said allegations; but he strenuously disputed how this situation had arisen.  The claimant, in particular, relied on what he said had been agreed with his former line manager, Mr Robertson, many years ago; and, in particular, that there had been an agreement to allow Mr Bradin to obtain such fuel as part of an agreement to obtain Mr Bradin’s services rather than pay him a salary increase and that, following the said agreement, this practice had continued to be operated by him at the Belfast Distribution Centre.  It was not disputed that, in the relevant period, Andy Hampton had only been allowed to fill up on two occasions by the claimant, as he had been using his own car on a number of occasions for business trips on behalf of the respondent.  In contrast to the allegation involving Mr Bradin, this was clearly a relatively minor use of fuel.  Clearly, the greater use of fuel in the said period had been by Mr Bradin.  Mr Bradin disputed that there was such an agreement to allow him to fill up his car with fuel as part of a salary package, as suggested by the claimant.  In the circumstances, the tribunal had some sympathy for the claimant when, throughout the disciplinary process, he kept requesting the respondent to contact Mr Robertson, whom he believed would confirm what he was saying; but the respondent refused to do so.  Indeed, as accepted by Mr Bruder in his memo to Mr Ebsworth, there were contrasting versions of events between the claimant and Mr Bradin, which he never resolved, having decided it was not necessary to make contact with Mr Robertson for the purposes of the disciplinary charges, the subject-matter of the disciplinary hearing.  The tribunal is satisfied that, to have attempted to resolve those differing versions of events, would have required contact to be made with Mr Robertson or at least try to do so, as part of any investigation.  Indeed, it might have helped the claimant’s view of the disciplinary process if such an attempt had been made.  Indeed, another employer might have done so.  However, the tribunal is satisfied that the decision not to try to contact Mr Robertson, in the circumstances, fell within the range of reasonable responses of an employer.  It so concluded, because the major act of misconduct of the claimant, as found by Mr Bruder, related to the failure of the claimant, as the Belfast Distribution Centre Manager, never to inform any line manager, following Mr Robertson, of what was taking place and in circumstances where the respondent’s relevant policies had been reiterated to the claimant on a number of occasions and, in particular, in or about September 2013.  Further, despite the contents of the said policies which had been reiterated to him, he allowed no relevant records to be kept.  These failures by the claimant, which, in reality, were not disputed by him, occurred, even if there had been such an earlier agreement involving his former line manager, Mr Robertson.  In the circumstances, the tribunal was therefore satisfied the respondent had the necessary belief in relation to the said charges and had carried out all necessary investigation.

 

4.6       However, the tribunal had considerable concern that, although the claimant was dismissed, inter alia, for breach of trust and confidence, this charge was not stated in the Notice for the disciplinary hearing.  Indeed, as admitted by Mr Bruder, he only thought of this during the course of the disciplinary hearing.  The tribunal is satisfied, on the facts found by it, this charge was not expressly referred to or raised by Mr Bruder, as a charge, until he did so in his oral conclusions.  The claimant therefore did not have a full and proper opportunity to address the said charge, before Mr Bruder reached his decision.  As held in Strouthos  v  London Underground [2004] IRLR 636, an employee should only be found guilty of the offence with which he had been charged and that only matters charged can properly form the basis for a dismissal.  The tribunal concluded that, to introduce such a charge in such a way and not to give the claimant a full and proper opportunity to address the charge at the disciplinary hearing, was unfair and did not fall with the range of reasonable responses by the respondent.

 

4.7       The tribunal does not underestimate the seriousness of the charges against a senior manager and that the claimant’s failures in the relevant period put the respondent at risk from potential penalties from HMRC.  However, it has to be noted that, subject to his defence relating to the involvement of Mr Robertson, the claimant did not dispute the factual scenario of the fuel irregularities and breach of policies during the relevant period.  In particular, there was no suggestion that these matters, having been the subject of the disciplinary hearing, the claimant would continue to act as he had done previously during the relevant period.  There was no personal benefit to the claimant by his actions.  The claimant had successfully worked as Belfast Distribution Centre Manager from in or about December 1989.  He had not had any disciplinary issues during this period.  Mr Bruder, in his oral reasons, given at the end of the disciplinary hearing, when deciding to impose the sanction of dismissal, merely stated:-

 

                        “I’ve taken into account your previous employment history.”

 

He made no specific reference to the length of that period and the fact that the claimant had a clean disciplinary record.  Indeed, he did not expand, in any way, what he had stated previously in the letter of dismissal, when giving his reasons for the dismissal.  In that letter he made no reference to why he decided that the sanction of dismissal was appropriate.  This was obviously a matter which concerned Mr Ebsworth, on the first appeal, as he asked Mr Bruder on his thoughts on this issue.  In his response, Mr Bruder referred to having considered the claimant’s previous good character during his 25 years of service.  However, he then went on to state, after referring once again to the issue of breakdown of trust and confidence, to issues about the claimant’s integrity and transparency, his laissez faire attitude towards corporate governance, which he found totally unacceptable at any level let alone that of a Belfast Distribution Centre Manager and the exposure of the business and individuals to sanctions with HMRC.  These further reasons were at no time stated by Mr Bruder in his oral or written reasons for dismissal nor were they fully and properly addressed during the course of the disciplinary hearing, giving the claimant no opportunity to properly challenge these further conclusions reached by Mr Bruder. 

 

4.8       The claimant, at no time, was given an opportunity to do so, on appeal, as Mr Ebsworth never showed to the claimant, at the first appeal, these further reasons set out by Mr Bruder; even though the severity of the sanction of dismissal was a ground of appeal by the claimant to Mr Ebsworth.  Further, the issue of sanction, given the claimant’s long service and good disciplinary record, was not expressly dealt with by Mr Ebsworth in rejecting the appeal.

 

4.9       The tribunal acknowledges the decision of an employer, in relation to the sanction to be imposed, is a difficult one, as seen in the case law referred to in Paragraphs 3.2.3/3.2.4 of this decision.  However, the tribunal has concluded the decision to impose a sanction of dismissal in this case did not fall within the band of reasonable responses by the respondent, having failed to give the issue the necessary consideration and, in particular, the range of sanctions, other than dismissal, such as Final Written Formal Warning, available to the respondent.  If the respondent had properly considered the issue, the matters set out in Mr Bruder’s memo to Mr Ebsworth would have been fully and properly addressed during the disciplinary hearing but also on the first appeal, which they were not.  Again, if there was the necessary and relevant consideration, the tribunal is satisfied these would have been stated by Mr Bruder in his oral reasons but also by Mr Ebsworth in rejecting the appeal of the claimant.  In the circumstances, the tribunal did not consider the respondent fully and properly considered, which it ought to have done, the claimant’s lengthy service, without any disciplinary issue; and, having done so, whether a sanction of something less than dismissal was appropriate in the circumstances.  Also there was no evidence of the likelihood of any repetition by the claimant; indeed the opposite was true. 

 

            Under the disciplinary policy it is stated that whenever the senior manager and Regional HR Manager/Group HR are satisfied that gross misconduct has taken place the result will normally be dismissal.  The tribunal was concerned that Mr Bruder and Mr Ebsworth did not feel it necessary to fully and properly consider the matters referred to above, given the use of the term ‘normally, in the policy.  Regardless of same, a reasonable employer is always required to fully and properly consider such matters before determining the appropriate sanction, even in the case of gross misconduct.

 

4.10    Under the relevant disciplinary policy, the respondent granted the claimant a second appeal, having determined that he was to be dismissed.  The fact that this was a second appeal does not avoid the responsibilities on a respondent to ensure that any such appeal is carried out fairly and properly.  This, in the judgment of the tribunal, Mr Streeter failed to do.  He did not read, in advance of the hearing, all the relevant documentation in the matter; but relied on the summary memo produced for him by Mr Brew.  Given Mr Brew was involved at the outset of the process and his actions in the process, along with others, was the subject of the appeal, the tribunal considers it was highly unsatisfactory he was asked to produce the memo (see further Ramphal).  In particular, the claimant was given no opportunity to challenge this memo.  In the summary at the end of the memo, Mr Brew’s use of highly emotive and subjective comments, expressed as fact on occasion, went far beyond an aide memoire of the main events that had occurred during the disciplinary procedure and the facts found; and his introduction of his personal view and opinions on the conclusions to be reached meant, in the judgment of the tribunal, the appeal was unfair and seriously tainted by the involvement of Mr Brew.  It was not his place, under the disciplinary policy, to make such comments or express such views.  Further, he had not been present at the disciplinary hearing or the first appeal or involved in the decisions made by Mr Bruder and/or Mr Ebsworth; but yet he felt free to express his own comments and opinions in this summary.  By this memo and Mr Streeter’s reliance upon it, without an opportunity for the claimant to challenge the contents of the said memo, the right to the claimant to a second appeal, which was his last opportunity to challenge the decision to dismiss him, was seriously compromised and therefore unfair.  It is also of relevance to note that Mr Streeter, in his written reasons to reject the second appeal, did not address the issue of sanction, as he was required to do, before rejecting the appeal.  In the circumstances, the tribunal is not satisfied that Mr Streeter, along with Mr Bruder and Mr Ebsworth, gave the necessary consideration to the issue of whether the sanction of dismissal should be imposed and was appropriate in the circumstances.

 

4.11    In light of the foregoing, the tribunal concluded the claimant had been unfairly dismissed.  In light of those conclusions and in particular, the failure by the respondent in relation to the inclusion of the charge of breach of trust and confidence, the imposition of the sanction of dismissal without any or proper consideration and the conduct of the second appeal, the tribunal does not accept these were merely failures to follow procedural steps but, in its judgment, were substantive failures on the part of the respondent.  Even if the tribunal is wrong, the tribunal is not satisfied that it can be concluded, even if these matters had been considered and taken into account by the respondent, there was a greater than 50% chance the respondent would still have dismissed the claimant and any such dismissal would have been fair, pursuant to Article 130A(2) of the 1996 Order.  To do so, given the nature of these serious failures, in the circumstances, would have involved too much speculation on the part of the tribunal as to what might have happened.  For similar reasons, the tribunal concluded a Polkey reduction would not be appropriate (see further Software 2000 Ltd  v  Andrews).

 

5.1       Having found the claimant was unfairly dismissed, it was then necessary for the tribunal to consider the remedy to which the claimant was entitled to and, in particular, the amount of any compensation to be awarded by the tribunal to the claimant.

 

5.2       In relation to the issue of contributory fault, the tribunal had to consider the actions of the claimant and not of the employer (see further Paragraph 3.30 of this decision).  Given the conduct of the claimant, the reason for his dismissal; and, in particular, his failure, as the senior manager responsible for the operation of the Belfast Distribution Centre, to fail to inform any of his line managers, following the departure of Mr Robertson, of the system he was operating in the centre, which allowed Mr Bradin and Mr Hampton to obtain fuel for private uses and his failure to do so, when he was aware of the terms of relevant policies, and the potential consequences of failing to follow such policies, which had been reiterated to him in the relevant period, the tribunal was satisfied the percentage deduction for contributory fault had to be sizeable in the circumstances.  It concluded the appropriate deduction was sixty per cent (60%).

 

            Having taken into account the decision of the Court of Appeal in Northern Ireland in G M McFall & Company Ltd  v  Curran, but also the recent decision of the Employment Appeal Tribunal in Steen  v ASP Packaging Ltd in interpreting the similar provisions in Great Britain, to Articles 156(2) and 157(6) of the 1996 Order (see Paragraph 3.31 of this decision), the tribunal was satisfied, having considered the claimant contributed to his dismissal, it would be just and equitable to reduce not only the compensatory award but also the basic award and by the same percentage reduction.

 

5.3       In the amended schedule of loss, the claimant made a claim for pension loss.  The claimant was a member of the respondent’s Pension Scheme.  This previously had been a final salary scheme but this was closed in 2013.  Thereafter it was a defined contribution scheme, which was placed with Legal & General Assurance Society Limited, with the claimant and the respondent each making respective contributions of approximately 8% and 16%.  By letter dated 28 October 2014, following the termination of his employment, Legal & General wrote to the claimant giving him the following options:-

 

“(1)      refund of your contributions paid, less tax, national insurance and less your employer contributions;

 

(2)       transfer the benefits in your account ot another registered pension scheme (this includes your employers contributions).”

 

He was further advised in the letter that unless the option was exercised within three months, he would forfeit his right to transfer the fund.  The claimant did not exercise the option and, subsequently, received from Legal & General the monies due to him, as referred to above.  In his new employment with United Wine Merchants, which commenced on or about 11 November 2014, the claimant is a member of a personal pension scheme with his new employer.  It would appear that the new employer is paying less by way of contributions in relation to the said scheme then the respondent was required to do under the Legal & General Scheme.  The claimant’s representative did not dispute that the respondent could not be liable for the loss of the employer’s contribution arising from his failure to transfer funds when the option was not exercised.  He suggested, however, the respondent should be required to pay by way of compensation the difference in the contributions paid by the respondent in comparison to that of the new employer, for a period similar to that allowed by the tribunal for any immediate or future loss.  Firstly, the tribunal is not satisfied the claimant can make any claim for pension loss of employer’s contribution in circumstances where he failed to exercise the option offered to him and he thereby broke the relevant chain of causation in relation to the dismissal to allow for any award for pension loss.  Even if the tribunal is wrong, the tribunal had insufficient evidence about the terms of the respective schemes and the benefits thereunder, the basis and precise calculation for any relevant contributions by an employer under the scheme and issues relating to tax relief, to be satisfied the claimant was entitled to any compensatory award for any such pension loss.  Indeed, the claimant’s failure to exercise the option, in the view of the tribunal, cannot be related to the termination of his employment and his subsequent feelings of disappointment and stress upon termination, since, within the said three month period, he was able to obtain the new employment and has had no further period of sick absence since that time.  There were no good relevant reasons shown by the claimant for his failure to exercise the option in the circumstances.  The failure to exercise the option was that of the claimant not the respondent.  It has to be recalled, in this context, the object of the compensatory award is to compensate for financial loss caused by the dismissal and to the extent that a tribunal consider ‘just and equitable’ (see Article 157 of the 1996 Order).  For the reasons set out above, the tribunal was not satisfied any pension loss was caused by the dismissal and it was not just and equitable in the circumstances to make any award for such loss.

 

5.4       It was agreed, subject to liability, the claimant was entitled to be compensated for the loss of his company car from mid-August 2014 – 14 November 2014 in the sum of £138.52.

 

5.5       As stated previously, the claimant obtained new permanent employment on 10 November 2014, as operations manager for United Wine Merchants at a salary of approximately £40,000.00 per annum.  It was not disputed that the difference between the claimant’s former net weekly pay and his net weekly pay with his new employer was £33.47.

 

            The tribunal was satisfied that, in the period between the termination of his employment and obtaining his new employment, there was no evidence the claimant failed in his duty to take reasonable steps to mitigate his loss, following his dismissal, and the respondent’s representatives did not seriously challenge, in cross-examination, his attempts to obtain employment, using all the usual avenues where job opportunities are advertised, and taking account of all the difficulties faced by anyone in the state of the present job market.  The claimant’s representative, in his written submissions, accepted it was hoped the claimant’s salary might in the ‘near future’ rise.  In the circumstances, the tribunal decided to allow a claim for future loss until 31 December 2015, which will be after he has worked for a full year in his new position and adjustments to salary might be more likely to be reviewed by the new employer. 

 

6.1       In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant as follows:-

 

                        A.        Basic Award

 

                                    £470.00 x 23             £10,810.00 (Subject to the statutory maximum)

                                    Less 60%

for contributory

fault)                           _________

                                                                        £  4,324.00

 

                        B.        Compensatory Award

           

                                    (i)         Loss of earnings from

                                                8 August 2014 to

                                                10 November 2014 at

                                                £507.69 per week –

                                                13 x £507.69                                                 £ 6,599.97

 

                                    (ii)        Loss to date of tribunal

                                                (22 June 2015) –

                                                £33.47 x 32                                                   £ 1,071.04

 

                                    (iii)       Future loss from

                                                22 June 2015 to

                                                31 December 2015 –

                                                28 x £33.47                                       £   937.16

 

                                    (iv)       Loss of statutory benefits               £   500.00

 

                                    (v)        Loss of company car                       £   138.52

 

                                                                                                            £ 9,246.69

                                                Less 60% for

Contributory fault                             _________

                                                                                                            £ 3,698.69

 

                                    Total Monetary Award (A + B)                    £ 8,022.69

 

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

 

6.3       The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, apply to this decision.  Your attention is drawn to the attached Recoupment Notice, which forms part of this decision.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:          22 – 24 June 2015; and

8 July 2015 Belfast

 

 

Date decision recorded in register and issued to parties: