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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Millar v Department of Justice [2015] NIIT 1680_13IT (27 January 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/1680_13IT.html
Cite as: [2015] NIIT 1680_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1680/13
CLAIMANT: David Millar
RESPONDENT: Department of Justice
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant was unfairly dismissed and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £16,563.89.
(2) The tribunal refuses, in relation to remedy, the application of the claimant for an order for reinstatement and/or re-engagement, pursuant to Article 147 of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr W Irwin
Mrs M Heaney
Appearances:
The claimant was represented by Mr N Philips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
Reasons
1.1 The claimant presented a claim to the tribunal on 18 September 2013, in which he made, inter alia, a claim for unfair dismissal and also a claim for unauthorised deduction of wages/breach of contract in relation to the respondent’s failure to pay notice pay. In a response form presented to the tribunal on 7 November 2013, the respondent denied liability for the claimant’s said claims. The claims of sex discrimination and public interest disclosure detriment were dismissed following their withdrawal at the Case Management Discussion on 28 January 2014.
1.2 In accordance with the tribunal’s normal practice at a Case Management Discussion, on 28 January 2014, to identify the issues to be determined by the tribunal, in addition to the said issues referred to above, it was also agreed, as an issue:-
“(3) Did the respondent fail to comply with the statutory disciplinary/ dismissal procedures under the Employment Rights (Northern Ireland) Order 2003?
(i) If so, is the dismissal automatically unfair?
(ii) In that event, is the claimant entitled to an uplift in damages?”
It has to be noted that in Venniri v Autodex [2007] UKEAT/0436/07 it was held that tribunals are under a duty to consider whether or not a dismissal is automatically unfair, under the relevant legislation, even where the allegation has not been expressly pleaded as the statutory procedures are part of the ‘essential fabric of unfair dismissal law’.
In any event, at the commencement of the substantive hearing, counsel for the claimant confirmed that the claimant was no longer making any claim in relation to a failure by the respondent to comply with the said statutory disciplinary/dismissal procedures and/or a claim of aud.. He further confirmed, for the avoidance of any doubt, that the claimant was not making any claim, pursuant to Article 134A of the Employment Rights (Northern Ireland) Order 1996 (protected disclosure/dismissal). It was agreed the claimant’s claim for unauthorised deduction of wages/breach of contract would be able to be determined in the context of the claimant’s unfair dismissal claim.
1.3 In Paragraph 6.11 of the claimant’s claim form, the claimant stated, if his case was successful at tribunal, that he wished to make an application for an order for re-engagement. At the commencement of the substantive hearing the claimant’s representative confirmed that, if successful, the claimant now wished to make an application, by way of remedy, for an order for reinstatement and/or re-engagement, pursuant to Article 147 of the Employment Rights (Northern Ireland) Order 1996. It was therefore agreed that, during the substantive hearing, the parties would address this issue, which would then be determined by the tribunal, as set out in the tribunal’s decision, and would not await the tribunal’s decision on liability before addressing the issue (see further Article 146 of the Employment Rights (Northern Ireland) Order 1996). The tribunal was satisfied that to proceed in this way was in accordance with the terms of the overriding objective.
2.1 The tribunal heard oral evidence from Ms Alison McIlveen, Ms Judith Black, Mr Stephen Campbell, Ms Karen Patterson, Mr Colin Patterson, Ms Natalie Smyth on behalf of the respondent; and also from the claimant in person. Mr D Wright had provided a witness statement on behalf of the respondent. This witness statement had been exchanged between the parties in accordance with the tribunal’s case-management directions/orders for the substantive hearing of this matter. It was agreed, and the tribunal so ordered, that this said witness statement would be admitted in evidence as hearsay evidence, subject to the warning by the tribunal as to the weight, if any, which could be attached to the evidence contained in the said witness statement, admitted as aforesaid. (See further Curley v Chief Constable of the Police Service of Northern Ireland & Another [2008] NIFET 442/99 FET – where this issue was not considered on the subsequent appeal to the Court of Appeal.) In the event, the tribunal decided not to give any weight to the said witness statement of Mr Wright in circumstances where the claimant’s representative were unable to cross-examine him on the matters set out therein.
Having considered the evidence given to the tribunal by the parties, as set out above, the documents contained in the ‘trial bundle’, to which the tribunal was referred during the course of the hearing, together with the oral and written submissions by the representatives of the parties, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim, as set out in the following sub-paragraphs.
2.2 The following, inter alia, were relevant and material terms, for the purposes of these proceedings, of the Flexible Working Time – Code of Practice. It was not disputed that this policy applied to the parties at the relevant and material time:-
“1.1 This Code of Practice, agreed between the management and trade union sides of the Central Whitley Council offers guidance on Flexible Working Time (‘FWT’) in the Northern Ireland Civil Service.
...
1.5 Flexible Working Time is now a well-established part of many Civil Servants working lives. Both sides of the Central Whitley Council would like FWT Schemes based on this booklet to be extended to as many Civil Servants in workplaces as possible.
...
2. Basic principles of Flexible Working Time.
2.1 The main purpose of FWT is to provide a more flexible system of attendance per staff.
...
There is however, a guiding and overriding principle that this flexibility should be achieved without adverse effect on the overall efficiency of Departments or on your service to the public.
2.2 Since, over a period, on FWT you work the same number of hours for your grade and location as non-FWT staff, your pay is not affected by the FWT arrangements.
...
3 Flexible Working Time – an outline
...
The day
3.2 In order to ensure that there are periods in each day during which staff can communicate with each other, with other Departments and with the public, several hours each day are designated as the core time. Core time is the essential part of the day during which you have to be present, unless you have permission to be away.
3.3 In many offices, however, there is no reason why all the staff should arrive and leave together, and there is time at the beginning and end of each working day when your absence is possible. These periods are called the flexible bands. You are free to arrive for work in the morning flexible band and leave for home during the afternoon flexible band subject only to the need to maintain adequate staffing during normal office hours. The total time for which an office is open for work is called the bandwidth.
3.4 The flexible lunch break in the middle of the day enables you to vary (within limits) the length and timing of your lunch breaks, subject only to operational requirements like the need to maintain adequate staffing in the middle of the day.
The Accounting Period
3.5 You would not be able to complete your conditioned hours by working during core time alone. The balance between core time working and conditioned hours is made up by attendance during the flexible bands. Hours of attendance are recorded and at the each of accounting period there is a reconciliation of the hours recorded with conditioned hours net of lunch breaks. Within limits, you can carry over any excess or deficient in the hours recorded compared with conditioned hours.
...
Core time
4.12 Core time is the essential part of the day during which all staff should be present unless their absence is authorised by management. The core time should normally be four hours (for example, 10.00 am – 12 noon and 2.00 pm – 4.00 pm or 10.00 am – 12.30 pm and 2.00 pm – 3.30 pm), but in exceptional circumstances core time may be extended by agreement with the Departmental Trade Union side.
...
Abuse
5.6 The operation and control of the FWT Scheme should normally rest with local management. A success of the Scheme will depend largely on the relations between staff and their line managers. Nevertheless, any system of time-recording can be abused if an individual is sufficiently enterprising and insensitive to the abuse of colleagues. Fortunately such individuals are rare, but it is only fair to everybody else that line managers should examine individual FWT records and ensure by frequent checks at irregular intervals that the Scheme is not being abused. In each Branch, flexi sheets must be held where they easily accessible to line managers. Flexi sheets should be completed by you in the morning and afternoon on starting and finishing work.
5.7 Since abuse of FWT is a breach of the Scheme, the offender’s participation in the Scheme may be suspended temporarily or indefinitely for persistent or serious abuse. This will be made clear, particularly if you are a newly-recruited staff who have joined an office already working FWT; and the normal times of arrival and departure (which would apply if your participation in FWT was suspended) will be specified in Staff Regulations or local staff notices. Whether or what disciplinary action should be taken if there is abuse depends, of course, very much on the circumstances of each individual case.
Time-recording
5.8 It will be quite clear that an essential part of any FWT Scheme is the accurate recording of the hours people actually work. The method of time-recording is by Departmental or local agreement, and may operate on mechanical, electronic or manual methods of recording. Mechanical or electronic methods will record times precisely; where manual methods are used, time should be recorded to the nearest five minutes.
Record-keeping
5.9 Paperwork should be kept to a minimum and records need not be kept for longer than three months from the end of the accounting period to which they are referred, unless used to monitor compliance with the Working Time Regulations, in which case retention until after each 17 – week reference period will be necessary.”
2.3 The following, inter alia, were relevant and material terms of the respondent’s disciplinary procedures, which were in force at the relevant and material time:-
“2.3 Principles Underlying Disciplinary Procedures
2.3.1 The general principles underlying the disciplinary procedures are:
(a) at all stages disciplinary proceedings will be completed as quickly as possible, consistent with the thorough investigation of the circumstances of each case and with the need for justice to be done and to be seen to be done; disciplinary cases should always be considered against as full an understanding as possible of any relevant personal, domestic or social circumstances and the assistance which the Staff Welfare Service may be able to give in this respect;
(b) you will be informed in writing of any formal disciplinary charges against you that are being considered and will be given an opportunity to answer those charges;
(c) you have the right to the assistance of a Trade Union representative or work colleague of your choice during all stages of the disciplinary procedure (or as specified in Paragraph 4.2.1). You must not be accompanied by a person acting in a legal capacity;
(d) there is no rigid code which automatically assigns specific penalties to particular offences. Any mitigating circumstances and your previous record of service should be taken into account when considering what penalty should be imposed for a disciplinary offence. Disciplinary proceedings should not be viewed primarily as a means of imposing sanctions. They should also be concerned with emphasising and encouraging improvements in individual conduct;
(e) except for serious disciplinary offences amounting to gross misconduct, you will not be dismissed for a first offence or dismissed without notice; but see Paragraph 4.3. (There is no specific definition for gross misconduct, but examples of behaviour that might lead to dismissal are shown at Annex 1.);
(f) any formal disciplinary penalty imposed and the reasons for it will be confirmed in writing;
(g) you have a right of appeal against any formal disciplinary penalty imposed (see Paragraph 4.2.4).
...
4. Serious Disciplinary Offences Resulting in Formal Disciplinary Action
4.1 Preliminary Steps (Enquiries)
4.1.1 Departments must carry out preliminary enquiries in cases where the facts are not clear before considering any formal charges.
...
4.2 Formal Disciplinary Procedures
4.2.1 As a first step in the formal disciplinary procedure, you will be given a written statement defining the charge(s) and setting out the details of the supporting facts. At the same time, if you are subject to a charge you will be advised of that, if you so wish, you may be assisted throughout by a Trade Union representative or a work colleague of your choice and that the Department will, with your agreement, send a copy of the written statement to that person. You will be invited to submit, within a reasonable period of time (normally 10 working days, but a shorter or longer period if agreed in the circumstances of a particular case), a written reply to the charge. You will be invited to attend a meeting by the person exercising disciplinary powers before any action is taken. You must take all reasonable steps to attend the meeting. You may, if you wish, be accompanied by a Trade Union representative or work colleague at the meeting, in accordance with the Employment Relations (NI) Order 1999.
4.2.2 The aim of the meeting is to resolve any doubts about the facts and to ensure that a clear picture is presented of your defence, without undue formality. Unless those exercising disciplinary powers intend to conduct the meeting personally they will appoint the person or persons who are to be present on their behalf. You may be accompanied by a Trade Union representative, or colleague. There can be no standard practice, but the normal intention is that the person or persons conducting the interview will submit a report to the person exercising disciplinary powers which should give their opinion as to whether you committed the offence (giving reasons for such opinion). The report will be accompanied by a note of the interview on which you will have been given the chance to record your comments. The fact that there has been a meeting does not affect your right to appeal afterwards.
4.2.3 The person exercising disciplinary powers is responsible for deciding whether you committed the offence in the light of the facts presented and, if so, what disciplinary penalty is appropriate. If it is decided that you did commit the offence a formal written warning may be issued. Where a formal warning already exists a final formal warning may be issued. You must be informed of the decision made at this point and the decision can take effect.
4.2.4 Departments must make clear to you your rights of appeal against disciplinary decisions and the procedures to be followed including time limits. In addition to any statutory rights, in the majority of cases of dismissal, you also have the right of appeal to the Civil Service Appeal Board ... .”
In Annex 1 of the said disciplinary procedures, it is stated, inter alia:-
“Examples of Behaviour that might lead to dismissal for gross misconduct are:
...
2. Unauthorised/improper receipt of money – receipt of money, goods or pecuniary advantages in respect of any services rendered.
3. Theft and Fraud – any deliberate attempt to defraud Departments, colleagues or members of the public, such as travel and other expenses irregularities, misappropriation of funds, deliberate falsification of time records and the like.
...
10. Breach of Procedures – actions likely or intended to corrupt or seriously affect the integrity of departmental systems, policies or information and destroying the trust between management and staff.”
The above list is not exhaustive and Departments reserve the right to dismiss you for gross misconduct, where the gravity and severity of the offence is such, that continuing your employment is not considered reasonable or appropriate.”
2.4 The claimant worked from 20 October 2003 at Forensic Science Northern Ireland (‘FSNI’) which is an agency of the Department of Justice. He commenced as a Laboratory Attendant and by 1 July 2008 he had been promoted to Scientific Officer in the Biology Section of the Evidence Recovery Unit (‘ERU’). On or about August 2009 he was moved into the Fingerprint Section of ERU and at the end of July/start of August 2012 into the Explosives Section of ERU.
2.5 On 28 June 2012, whilst he was still working in the Fingerprint Section of ERU, the claimant raised issues with Stephen Campbell, Director of Laboratory Services, in particular, in relation to what he believed was major abuse of the flexible working system by certain members of the Fingerprint Section; but, in particular, AB, who was doing so, he alleged, by under-recording. He further alleged that the manager of the Section, Colin Prentice, was turning a ‘blind eye to this abuse’. Although Mr Prentice was accused of ‘turning a blind eye to the said abuse’, he was asked by Mrs Natalie Smyth, a Senior Scientific Officer and relevant Section Manager/Head of Section for ERU to investigate the allegations made by the claimant.
2.6 The investigation carried out by Mr Prentice into the flexi time claim by AB and other members of staff in the Section primarily consisted of looking at the flexi sheets completed by the staff themselves and then talking to the staff. In relation to AB, in particular, Mr Prentice discovered, on foot of this limited investigation that:-
(i) The account of AB of her flexi time on the sheets was ‘badly in deficit’.
(ii) There were inaccuracies in her own completion of her sheets.
(iii) There was a possibility that the extent of her flexi deficit, which he had found, might be even greater.
Mr Prentice did not carry out any further investigation, despite his findings, to ascertain the extent of the deficit in the flexi of AB. In particular, he did not attempt to obtain the swipe records of AB, in order to compare same with the flexi records; albeit he was fully aware such a comparison would provide an objective method of showing the extent of any such deficit. The tribunal was satisfied that, at all relevant times, he was more focused upon ensuring the work was completed by his staff than ensuring proper compliance with the flexi system, which was one of his priorities at the time. Indeed, as he admitted in evidence to the tribunal, he was only interested in people’s timekeeping ‘to some extent’.
However, despite the seriousness of the matter, he had found out on foot of his investigation, as set out above, Mr Prentice did not inform Mrs Smyth. In particular, he merely told her ‘that the issues merited relatively minor redress’. The tribunal found Mr Prentice a most unsatisfactory witness, who failed to give any credible explanation how, despite what he had found, he was able to give Mrs Smyth at the time such a bland assurance. He tried to introduce, in the course of his evidence to the tribunal, during the course of cross-examination, an explanation that he had not previously set out, in either his witness statement to the tribunal, which was agreed to be his direct examination to the tribunal, or at any other time. He suggested, on foot of this explanation, that he had relied on an output analysis, which had been carried out in the Section at or about the relevant time and which he contended showed that the output of AB was considerable at the time, despite the fact that she did not appear to be completing her flexi records correctly. If this had been a relevant consideration for Mr Prentice at the time, the tribunal is satisfied he would have referred to it earlier in his evidence and not, for the first time, during the course of cross-examination, when he was finding it difficult to give to the tribunal a rational and coherent explanation for failing to inform Mrs Smyth what he had actually found and for his failure to carry out any further investigation, despite his findings. Indeed, the tribunal considered it gave credibility to his admitted lack of interest in what was done by his staff in relation to flexi time at the time, provided they carried out their work. It also gave some support for the claimant’s allegation that Mr Prentice was ‘turning a blind eye’ to abuse of flexitime by a member of his staff.
2.7 The tribunal is satisfied that the investigation carried out at the time by Mr Prentice, into the allegations made by the claimant about abuse of the flexible working system, was not sufficient. Indeed, in the course of her evidence, Mrs Smyth accepted, fairly and frankly, to the tribunal that, if she had been told by Mr Prentice what he had actually found out in his investigation, as set out previously, rather than merely obtaining from him his assurance that the issues only merited minor redress, she would have taken further action to further investigate the matter and, in particular, in relation to AB. The tribunal has no doubt such further action would have included the obtaining and examination of the flexi records of AB and/or a formal meeting with her and probably a wider investigation of the use of flexi by staff in the Section; but also into the failure of Mr Prentice to investigate the matter properly in his role as the line manager of AB. Mrs Smyth clearly accepted Mr Prentice’s assurances at face value and without any further attempt by her to ascertain any detail from him of what he had done and found out as part of his investigation.
2.8 In the above context, it is necessary to note that, following discovery obtained by the claimant’s representatives in the course of these proceedings of the swipe and access and flexi records of AB, it was found that, in the period of March 2012 to mid-June 2012, there was an under-recording by her of approximately 101 hours and 20 minutes. If this comparatively simple comparison had been carried out by Mr Prentice and reported to Mrs Smyth, the tribunal has no doubt that further action would have been taken by Mrs Smyth.
2.9 The claimant was moved from the Fingerprint Section to the Explosives Section in the ERU by Mrs Smyth with effect from 30 July 2012. The tribunal is satisfied this transfer arose out of an issue about the claimant’s performance in the Fingerprint Section and, in particular, this transfer and any grievances raised by the claimant about the said transfer, subsequently brought by the claimant against Mrs Smyth, had no relevance to the claimant’s dismissal, the subject-matter of these proceedings.
2.10 Following the claimant’s transfer to the Explosives Section of ERU, Mrs Smyth requested from his line manager, Ms P McIntyre, regular updates of his progress against his training plan, as his transfer had arisen, as stated previously, from performance issues. As a result, but for no other reason, his work was therefore closely observed by Mrs Smyth. In his new post, his productivity was found to be lower than expected and, in this context, Mrs Smyth raised concerns about his flexi leave sheets. As part of her overall line management role of the Section, Mrs Smyth also carried out from time to time random checks on completed flexi records for monitoring purposes. In or about September/October 2012, as part of these checks, Mrs Smyth became aware of discrepancies in the claimant’s flexi leave sheets. She began an investigation into the completion of these records by the claimant and others in the Section. Ms McIntyre was originally tasked by Mrs Smyth with carrying it out. In the course of doing so, in or about the beginning of November 2012, the claimant admitted to Ms McIntyre to not filling in time records accurately in the past and he was told by Ms McIntyre to make sure that he did so. Ms McIntyre took the view these failures had arisen because he had developed bad habits over the years with respect of his timekeeping, but before he had moved to the Explosives Section where she was now managing him; and she sought to be given an opportunity by Mrs Smyth to continue to supervise and ensure accurate record and timekeeping by the claimant. Ms McIntyre, in error in the tribunal’s view, also clearly believed that the investigation sought by Mrs Smyth had come about because he had made the previous complaint in or about June/July about the use of flexi time, rather than, as Mrs Smyth explained to Ms McIntyre, because of the said discrepancies which had been found by her, since his transfer to the Explosives Section. Unfortunately, during her investigation, Ms McIntyre expressed these erroneous views held by her to the claimant, which led him, in turn, to challenge, wrongly, in the tribunal’s view, the motives of Mrs Smyth for her subsequent actions to further investigate these discrepancies. Mrs Smyth was clearly not satisfied that Ms McIntyre would, in the circumstances, resolve the matter of the discrepancies of the claimant as she wanted and she decided to further investigate the matter herself, rather than leave this to Ms McIntyre. Significantly, in contrast to what had occurred previously at the time of the Prentice investigation, Mrs Smyth, as part of her further investigation, obtained and examined swipe records from the claimant and others for the period 1 – 31 October 2012 and identified many discrepancies which suggested the claimant, but also others, might be failing to accurately record their flexi times, in accordance with the relevant procedures.
2.11 In particular, as a result, Mrs Smyth met the claimant on 21 November 2012 and informed him that, after examination of his relevant records, she had found, in particular, significant variance over a 15 day period (in excess of 30 hours) between the claimant’s recorded start and finish times and the first and last activity recorded in the prox system. The claimant, in the course of the meeting, sought to put forward various reasons by way of explanation for the said variations but, in summary, he strongly denied, at this time, any wrongdoing on his part in relation to the recording of his flexi time.
2.12 Mrs Smyth was not satisfied her concerns about the claimant’s flexi records had been resolved by the explanations of the claimant at her meeting with him; and she decided that further investigation was required. The matter was referred by Mrs Smyth to Mrs A McElveen, the Corporate Service Director within FSNI, on the grounds she had reason to suspect the claimant was not complying with the respondent’s Code of Practice on flexi time working, referred to previously, which, in terms, sets out the basic principles of flexi working time, recordkeeping and what action can be taken if the scheme is abused. The claimant’s flexi time working was suspended and a fixed pattern of working was introduced for him, at the meeting with Mrs Smyth on 21 November 2012.
2.13 The tribunal was satisfied, for the purposes of the claimant’s claim of unfair dismissal, her decision to require this further investigation was properly within her responsibilities and role as Section Manager/Head of Section for ERU, given her concerns and the claimant’s denial of any wrongdoing in relation to the variances found in the records, and that no valid or proper criticism of that decision, in itself, can be made by the claimant in the circumstances. Further, in particular, the tribunal was not satisfied that the decision taken by Mrs Smyth to refer the matter to Mrs McElveen was because the claimant had previously raised issues about the flexi records of AB in June/July or because he had raised a grievance against Mrs Smyth about his transfer. The tribunal was satisfied it was taken in her role as Head of Section/Section Manager, following her discovery of discrepancies in the claimant’s relevant records. In the circumstances, it was not necessary for the tribunal to consider further the said grievance.
2.14 Mrs McElveen wrote to the claimant on 4 February 2013:-
“As a result of an investigation, it has been brought to my attention that during the period 31st of July 2012 to 31st of October 2012 you failed to comply with the NICS Flexible Working Time Code of Practice and your recording of your hours worked was at a significant variance from the records presented by ‘prox and pin’ access system.
I am therefore charging you with the following:-
(i) Breach of the Flexible Working Time Code of Practice
The policy clearly states that core time is the essential part of the day at which you have to be present unless you have permission to be away, and that lunch breaks should be subject to operational requirements and the need to maintain adequate staffing in the middle of the day, therefore, if on occasion you are required to extend your lunch break it should only be done by prior agreement with management.
The policy further states that flexi sheets should be completed on starting and finishing work, accurate recording of the hours actually worked is required. The access records demonstrate that you attended work regularly after 10.00 am and left work on a number of occasions prior to 1600 hours. This would be deemed to be within core hours. Your lunch regularly exceeded the accepted 30 minute break, often lasting up to one hour thirty minutes, and line management have confirmed that this practice was never agreed or approved. Management have also confirmed that you failed to regularly update your flexi records, that you often required prompting to do so and that the flexi time recorded is not an accurate reflection of the hours actually worked.
(ii) Fraudulent recording of flexi time between 31st of July 2012 and 31st of October 2012
A comparison of your recorded flexi time record and the access ‘prox and pin’ system between 31st of July 2012 and 31st of October 2012 shows a variance of over-recording amounting to 88 hours. This reflects variance at start time, lunch breaks and end of day. CCTV footage viewed confirms the ‘prox and pin’ access records as an accurate reflection of your attendance at work, time taken on lunch breaks and end of working day ... .”
2.15 Various interviews were held by Mrs McElveen, in particular, with Mrs Smyth, Ms McIntyre, Mr Prentice and the claimant and, on 25 March 2013, Mrs McElveen set out, in her detailed investigation report, her findings and conclusions on the said issues. She stated, inter alia:-
“Allegation 1 – Breach of the Flexible Working Time Code of Practice
‘There is evidence to support that DM regularly took lunch breaks, in excess of the standard practice of a 30 minute lunch and did so without seeking management approval. Access records and CCTV footage also show that DM arrived for work and departed from work within core hours, without seeking permission. DM has admitted to the fact that he failed to regularly update his records and he also acknowledged that there are inaccuracies in his recording. It is my view therefore that the allegation is found.
In reaching this conclusion I took into consideration the fact that management should have been aware that DM was regularly taking long lunch breaks, and he was not seeking daily approval to do so. Management should have more clearly stated expectations and put a process in place in order to better manage the whereabouts of staff. However, DM, as an experienced member of staff, and coming from an operationally controlled area should have been clearly aware of the need to update management when going on site particularly for health & safety reasons.
DM during his interview admitted that he was familiar with the contents of the Flexible Working Time Code of Practice, and should therefore have been adhering to the requirements contained within, and as a Civil Servant since 2003, had experienced many years to flexi time working’.
Allegation 2 – Fraudulent recording of Flexi Time between 31st of July 2012 and 31st of October 2012
‘Evidence including access records and CCTV footage supports this allegation of significant over-recording of flexi. Eighty eight hours in 46 days is equivalent to an average 1.9 hours per day or 25% of available working hours. DM admitted to inaccuracies in flexi working, although he was unaware of the extent of the variance ... .I am therefore satisfied, even taking these small differences [sic] into account, is well in excess of 85 hours and therefore my view that this allegation is found ...’.”
2.16 In the course of her detailed report, there is reference by Mrs McElveen to a large number of specific matters stated by the claimant, by way of response to the allegations made against him, in the course of the investigation, which included, inter alia, for example:-
· accepted there were inaccuracies but did not know it was so bad until he saw it in black and white;
· poor management ...
· he was not kept busy, hard to get through eight hours, and that this meant that his absence has little impact operationally on the business anyway;
· there was a culture of inaccurate recording across FSNI and his view was that ‘what was good for the goose was good for the gander’;
...
· that he just couldn’t remember and didn’t understand how he could have recorded such variance;
· that he now understood the seriousness of the situation;
· this was not intentional fraud and won’t happen again; and
· he wanted an opportunity to put things right.
Mrs McElveen also referred in her report to the mitigating circumstances put forward by the claimant, including his personal caring requirements for his mother at the relevant period; but she noted these had only been put forward at the latter stages of the investigation, despite the fact the claimant had been given every opportunity to explain his actions at an earlier stage.
In particular, she also referred to the issues of management practice which the claimant had raised in his defence and she concluded:-
“Management Practise [sic]
DM refers to a culture of abuse and names colleagues in his previous and current Section involved in flexi abuse. Whilst there are some management recommendations included in this report there is no evidence to support widespread abuse of lack of management controls. His ‘whistle blowing’ allegations were fully investigated within SFU and satisfactory explanations to concerns were provided [tribunal’s emphasis] ... .”
Mrs McElveen accepted in evidence to the tribunal, similarly to Mrs Smyth, that if she had known about /seen the findings relating to the flexi records of AB, as produced at the hearing and referred to previously, she too would have required the matter to be further investigated. She acknowledged that the assurances given by Mr Prentice between Mrs Smyth, and accepted, without further action, by Mrs Smyth had led to what she had stated in her report as set out above under heading of ‘Management Practise’; and that, as a result she did not look further into the matter, and she had reached a conclusion, as set out above, which clearly did not reflect, as she fairly acknowledged, the accurate position in the absence of that further investigation. It must be noted the allegation by the claimant about management practice was a key/major tenet of the claimant’s defence as to why he had done what he had admitted to, when interviewed by Mrs McElveen. Further, Mrs McElveen accepted, in evidence, if management were ‘turning a blind eye’, as relied upon by the claimant, this was relevant to the proper sanction to be applied by an employer to an employee for such conduct.
In considering the claimant’s responsibility and remorse for his actions, as set out above, in relation to the matters relied upon by the claimant in his defence, the tribunal considered significant the finding made by Mrs McElveen when she stated:-
“My conclusion is that throughout this process he has sought to blame others for his actions and continued to deny there was any wrongdoing until the evidence presented meant that he could deny them no longer ... I believe DM is sorry but it would be reasonable to conclude that it is a fact more about being sorry that he was caught out ... .”
2.17 Mrs McElveen therefore recommended that, in light of the very serious nature of the misconduct, as found by her, the appropriate sanction was dismissal. She also made a recommendation that “management weaknesses have been identified as contributing towards the extent of the abuse of the flexi system in this case. Whilst it is clear that expectations were set at senior management level, and that was communicated by section managers, the consistent application of the policy and action at line management level needs to be reviewed, expectations set out very clearly through performance agreements and checks and balances put in place ...”.
She also recommended that reminders needed to be re-issued to all staff to ensure they were very clear about the contents of the flexible working procedures and their responsibilities in relation to core hours working, lunch breaks and accurate, timely recording of hours of attendance.
2.18 Arising out of the Framework Agreement between the respondent and FSNI, it was necessary, in light of Mrs McElveen’s recommendations, to refer the matter to the Human Resources Section of the respondent. As a result, the claimant was sent a letter dated 13 April 2013 by Mrs J Black, Establishment Officer, stating that he was charged with gross misconduct under the respondent’s disciplinary procedures referred to previously. The charges, in the said letter, were in the same terms as those set out in the letter from Mrs McElveen to the claimant, dated 4 February 2013, which have been set out in some detail previously. The claimant was invited to make a written reply to the charges and then to attend a disciplinary hearing, in accordance with the respondent’s disciplinary procedure.
In the course of his written response, the claimant highlighted, inter alia, that, in relation to AB, and others, no investigation had taken place and no action had been taken by FSNI, but also “I want to point out flexi abuse is very much a global/cultural thing”. He concluded, “it may look like I’m pointing the finger elsewhere. I am not, I’m just highlighting that whilst I understand and acknowledge the seriousness of the situation I know there are many who have done similar and I’m not happy that double standards have been applied”.
A disciplinary hearing took place on 13 June 2013 with Mrs Black and she notified the claimant of her decision in a letter dated 2 July 2013, to summarily dismiss him for gross misconduct.
2.19 At the disciplinary hearing, the claimant apologised for his actions and regretted his behaviour. In particular, he referred again to the ‘laid back culture in certain sections of FSNI with regard to flexi recording’. In relation to the first charge he confirmed “he did not seek specific approval but that the attitude in the branch towards flexi was that you could take whatever you want just as long as the work is completed”. In relation to the second charge, the claimant did not accept the variance of 88 hours in the charge but he admitted to 60 or 70 hours, which he agreed was unacceptable.
Again, he emphasised that, in respect of the second charge “the lax attitude to flexi in FSNI gave him a false sense of security, then carelessness crept in with regard to recording the flexi on a daily basis ...”.
At the end of the disciplinary hearing the claimant informed Mrs Black that he had no previous warning for conduct, with nine years’ service with no conduct issues.
2.20 On 14 June 2013, which is after the disciplinary hearing with Mrs Black, but before her letter of 2 July 2013, the claimant had received a letter dated 14 June 2013 from David Wright, Human Resources Manager in FSNI. This letter stated, insofar as relevant and material to these proceedings:-
“On 9th of January 2013 you were informed that the Department was considering taking disciplinary action against you in relation to:
‘A breach of official instructions and trust, in that you wilfully did not comply with GP 203 :
Monitoring of refrigerators, freezers, ovens, incubators and furnaces whereby you failed to check fridge temperatures and in fact falsely entered reading for the 10th, 13th and 17th of December [2012] which you had made up.
Failure to exercise responsibilities under Health & Safety legislation (Health & Safety at Work Act 1974) in that you failed to check that the alarm, lights and fan on the LEV as instructed and in fact you falsely entered readings on the 20th, 26th of November and 10th December [2012] indicating that you had in fact checked these.
Negligent behaviour which seriously threatens the quality accreditation of the laboratory which could result in loss of public confidence, unfavourable criticism and risk to case work.
You attended a disciplinary meeting on 30th of April 2013 ...
I have ... decided your behaviour amounts to gross misconduct. I have decided to impose the following disciplinary penalties which are effective from 17th of June 2013.
Formal Final Written Warning which expires on 18th of June 2015.
...
You shall regard this letter as a Formal Final Written Warning which will be placed on your personal file and disregarded for disciplinary purposes after 18th of June 2015 based on satisfactory conduct I would expect to see an improvement in your conduct in future.
However, you should be aware that any further breach of the conduct rules within this period may lead to your dismissal.
...
You have the right to appeal against this decision. If you wish to avail of this please advise me in writing setting out the reasons for your appeal within 10 working days from the date of this letter.’.”
2.21 In a letter dated 2 July 2013, Mrs Black stated her reasons to the claimant for dismissing the claimant:-
“I am writing to advise you that you are being dismissed with immediate effect on grounds of gross misconduct. The reasons for my decision are set out below:-
...
2. You attended a meeting with me on 3rd of June 2013, following a recommendation from the HR Director in FSNI that you should be dismissed on grounds of gross misconduct in relation to the following charges:-
· breach of the Flexible Working Time Code of Practice;
· fraudulent recording of flexi time between 31st of July 2012 and 31st of October 2012;
...
4. Despite the very serious nature of the behaviour in relation to the recording of hours worked, which amounts to fraud and theft [tribunal’s emphasis], I was initially minded to impose penalties short of dismissal, including repayment of the hours over-recorded.
5. However, it was then drawn to my attention that you had received a Formal Final Written Warning dated 14th of June 2013 in relation to a further three disciplinary charges as set out below:-
· breach of official instructions and trust in that you did not comply with GP 203;
monitoring of refrigerators, freezers, ovens, incubators and furnaces;
· failure to exercise responsibilities under Health & Safety legislation;
· negligent behaviour.
6. Your behaviour, in relation to the abuse of the flexible working hour system, and the incidents which led to the above charges being brought against you, has destroyed the trust between you and management in FSNI and raises such concerns as to your integrity that your continued employment in DOJ is not considered reasonable or appropriate. Your dismissal is effective from the date of this letter.
... .”
The letter further set out the claimant’s right to appeal the decision, in accordance with the respondent’s appeal procedure.
Mrs Black when she reached her decision to dismiss the claimant took into account Mrs McElveen’s report, the claimant’s written submissions to her and the information presented by him at the disciplinary hearing, including his admission of the charges against him, subject to some dispute about some over-recording of the hours and mitigating factors relating to his health and that of his mother, the length of his service and grade but also “the fact that he had a live Formal Final Written Warning in relation to gross conduct on his file”.
She concluded her witness statement by stating:-
“ ... I advised him that I had initially been minded to impose penalties short of dismissal but that as a Formal Written Warning had been issued to him, in relation to other disciplinary charges of gross misconduct (unrelated to abuse of flexi time) my decision was that he should be summarily dismissed. Key to my consideration in this regard was that both disciplinary proceedings involved breach of trust and integrity to the extent that I considered he had really forfeited any right to be employed by DOJ.”
2.22 Mrs Black confirmed, in evidence, she had taken the Final Written Warning into account in reaching her decision as the warning was contained on the claimant’s employment record at the time of her decision but she had not looked behind the terms of the warning as set out in the letter of 14 June 2013, and confirmed, but for the fact of the said warning, the claimant would not have been dismissed. The claimant did appeal, within the said period, the decision to impose the Final Written Warning, which to the knowledge of Mrs Black, was outstanding at the time she sent her letter of dismissal dated 3 July 2013. Mrs Black, although she had relied, as set out above, when reaching her decision to impose the sanction of dismissal, upon the said Final Written Warning, she did not seek further submissions, oral or written, from the claimant about the application and/or relevance of the said written warning to her decision to dismiss. Following a letter sent by the claimant’s trade union representative on 4 July 2013 about the effect of the claimant’s appeal, in relation to her decision to dismiss, Mrs Black wrote to the claimant’s trade union representative a letter dated 4 July 2013, in which she stated:-
“I am aware that David has submitted an appeal against the separate decision to issue him with a Final Written Warning, in relation to other charges of gross misconduct. Should this appeal be upheld, I shall review my decision in due course.”
2.23 Following an appeal in relation to the imposition of the Final Written Warning held on 23 July 2013, the claimant was informed by David Brooks, the Appeals Officer, in a letter dated 11 September 2013, the appeal was not upheld and the decision to impose the Warning should stand and it would expire on 18 June 2015.
2.24 In relation to the Final Written Warning, following the rejection of his appeal by Mr Brooks, the claimant further appealed to the Chief Executive of FSNI; but he was informed by letter dated 18 October 2013, this appeal had also been rejected.
2.25 The tribunal was concerned about the impact of the Personnel Framework Agreement between the respondent and FSNI on the terms of the respondent’s disciplinary procedures. Mrs McElveen commenced her investigation pursuant to Paragraph 4.2 of the respondent’s disciplinary procedures, referred to previously. But, after she made her recommendation in her report that the matter was so serious it required the claimant to be dismissed, she was unable, under the terms of the Framework Agreement, to make such a decision and her recommendation required to be referred to the respondent; and, in the event, it required Mrs Black to make the relevant decision whether or not the claimant should be dismissed in the circumstances. The necessity for this referral to Mrs Black to make the decision and not Mrs McElveen, because of the Personnel Framework Agreement, was not expressly provided for under the respondent’s disciplinary procedures. It is apparent that, in the absence of any express provision, Mrs Black adopted and relied upon the investigation report of Mrs McElveen; although when it was carried out, it had not been done on her behalf as she only became involved following the said recommendation of Mrs McElveen. However, although the tribunal considers that amendments to the disciplinary procedures should be made to ensure relevant and appropriate consistency with the terms of the Personnel Framework Agreement, it does not consider that this failure, of itself, resulted in any unfairness to the claimant and requires to be considered further for the purposes of this decision. It does so, in particular, because Mrs Black, before reaching her decision to dismiss the claimant, followed, in essence, Paragraph 4.2 of the respondent’s disciplinary procedures, albeit adopting and relying upon the investigation report of Mrs McElveen, which had not been initially sought by her, under the procedures, for the reasons set out above.
2.26 It was not disputed the respondent, at no time material to these proceedings, had issued any specific guidance and/or formal code in relation to the effect and/or use of formal Written Warnings on an employee’s record, in connection with the application of the respondent’s disciplinary procedures. (But see further the Principles Underlying Disciplinary Procedures, Paragraph 2.3.1(d), set out in Paragraph 2.3 of this decision.)
2.27 The claimant’s appeal from the decision was heard by Ms Karen Pearson, who at the relevant time was a Deputy Director in the Personnel and Office Service Division of the respondent. Following meetings with the claimant on 13 November 2013, 9 December 2013 and 15 January 2014, Ms Pearson decided to dismiss the appeal and he was so informed by letter dated 31 January 2014, in which Ms Pearson stated, inter alia:-
“ ... The reasons for my decision are that I am satisfied the proper process was followed, that decisions exercised by Judith were right and reasonable and that she was right to conclude that trust and confidence had broken down and that dismissal was the correct approach. When we met in December, you raised questions with me about consistency of treatment (outcomes and formality of process), lax attitude to flexi in FSNI, procedural issues and your personal circumstances. I have looked very carefully at each of these issues. I do not find that your treatment in comparison to others in FSNI was unfair. I have not seen evidence of a general lax approach to flexi. I have looked carefully at the procedural choices exercised by Judith and I found these to be robust and correct. I do not agree with you that you were entitled to notice pay. I have also considered carefully your personal circumstances but I do not find that these warranted the choice you exercised in relation to your flexi time.
There are no compelling reasons for overturning the decision and I am content the proper processes have been followed in this case.
... .”
[tribunal’s emphasis]
2.28 The tribunal is satisfied that Ms Pearson, in reaching her decision also relied on the report of Mrs McElveen, referred to previously, and she did not seek to go further investigate/question the matters set out therein. In this context, in her internal report, Ms Pearson, when setting out her reasons for her decision, stated, in particular,:-
“ ... to be fair to David he does raise disparity in some detail in his written response to the investigation (his e-mail of 18th of February 2013 [sic] [02.13.38 refers]) and he raised it in detail with me at our substantive meeting.
It is clear to me this point was taken into account in the original investigation, as set out in Alison McElveen’s report dated 25th of March 2013. By that date she would obviously have been aware of the issues raised in David’s written response dated 18th of February 2013. Alison covers this in the section entitled ‘Management Practise’ on Page 13 of her report. I conclude that while David may not like the outcomes put in place for others, the investigation report shows that Alison had looked at this issue. I can also speak from the perspective of having worked closely with Alison in HR matters. I believe she would have no hesitation in criticising the outcome for others if she felt they were lax or inappropriate.”
[tribunal’s emphasis]
In the course of her evidence, Ms Pearson referred to making some enquiries of Personnel, before reaching her decision on the appeal; but it was not clear what this related to or indeed what she had been told by Personnel.
2.29 At the appeal meeting on 9 December 2013, the claimant referred, for the first time in the course of the disciplinary process, to a series of text messages between himself and his then line manager, in the Explosives Section of ERU, Ms P McIntyre, in or about November 2012, when it was known by both of them that the claimant was being investigated/ concerns had been raised about his recording of flexi times. Ms McIntyre had said in one of the texts, in particular, that “it was up to her to sort it out and she would take responsibility for not checking up on all his times”. The claimant relied upon this at the appeal, in particular, in support of his defence that his line manager (ie Ms McIntyre) did not care about his times, provided the work was done. Indeed, the tribunal noted this view was very similar to that expressed by Mr Prentice, the claimant’s previous line manager in the Fingerprint Section of ERU as explained during the course of his evidence to the tribunal (see Paragraph 2.6 of this decision). Ms Pearson was critical that these texts had not been previously raised by the claimant but, despite this, she agreed to take them into account. Having done so, and despite the words used in this text, she did not investigate the matter further and, in particular, obtain an explanation from Ms McIntyre herself of what she exactly meant. However, in the absence of speaking to Ms McIntyre, Ms Pearson took account of a series of e-mails between Ms McIntyre and Mrs McElveen, referred to in the McElveen report, in relation to what Ms McIntyre had said to the claimant about his flexitime recording; albeit, it was acknowledged by Ms Pearson, there remained considerable doubt, upon reading these e-mails about what had been exactly said by Ms McIntyre to the claimant and in what precise context. It also has to be noted that, at the time of her report, these text messages sent by Ms McIntyre to the claimant were not made known to Mrs McElveen. In her internal report, Ms Pearson heavily criticised the use of text messages by Ms McIntyre to communicate to her staff. She also concluded, in relation to Ms McIntyre’s text message, as set out above, it was possible Ms McIntyre felt she should have done more, because there had been previous concerns about the claimant’s flexi and because she had spoken to him about this on his arrival in the Explosives Section. Ms Pearson, again without further investigation or contact with Ms McIntyre, concluded that, despite the terms of the text, there was no evidence of a general lax attitude on Ms McIntyre’s part in relation to flexi. In evidence, Ms Pearson accepted that there should have been firmer management by Ms McIntyre in dealing with the issue of the claimant’s flexi and she also admitted she had little confidence in Ms McIntyre’s judgment. She also accepted that she should have spoken to Ms McIntyre herself rather than postulating, as set out above, what Ms McIntyre might have meant in her said text to the claimant. Ms Pearson sought to excuse, in her evidence to the tribunal, this failure to speak to Ms McIntyre, on the grounds that Ms McIntyre was on sick absence at the time; albeit there was no reference in her said internal report that this was the reason for her not speaking to Ms McIntyre.
2.30 The reliance on the Final Written Warning by Mrs Black, when deciding to dismiss the claimant, was an issue at the appeal, not only in relation to the validity of her taking it into account but also her decision to do so at the time an appeal was pending in relation to the said warning. Therefore, the tribunal was satisfied the claimant was given an opportunity at the appeal hearing to challenge Mrs Black’s reliance on the said warning. In essence, Ms Pearson, on the appeal, decided to adopt and follow the decision and reasoning of Mrs Black on this issue.
2.31 In relation to the remedy of reinstatement and re-engagement, which was sought by the claimant, and, in particular, the issue of practicability of complying with any Order of Reinstatement and Re-engagement that might be made by the tribunal, the respondent’s witnesses did not attempt to suggest that it would not be practicable for him to be found another post in the respondent or indeed the wider Northern Ireland Civil Service. However, Mrs McIlveen, Mrs Black and Ms Pearson were all of the view that it would not be practicable for the respondent to comply with such an Order, because, as a result of the claimant’s actions, there had been a fundament breach of trust, which, in their view, had raised questions about his integrity and trust which therefore made him unsuitable for any continued employment with the respondent.
2.32 The claimant, who was born on 16 November 1976, was employed with FSNI from 20 October 2003 until 2 July 2013. It was not disputed, at the date of his dismissal, his annual salary was £26,217.96 gross (£504.20 per week) and his monthly net salary was £1,559.12. He does not have any science qualifications/ degree and all his experience/training in forensic science was specialised and obtained ‘in-house’. Because of the foregoing, the tribunal accepts that the claimant would have found it difficult to obtain employment, following his dismissal, in a general scientific post, in the absence of a formal scientific qualification, which is normally required for such a post. Without underestimating the difficulties of obtaining employment in the present economic climate, the tribunal has no doubt the claimant, who is clearly intelligent, will be able to obtain employment in a wide variety of fields in due course, given his record of employment in the Civil Service for the above period. The tribunal is satisfied, and it was not seriously challenged, the claimant has been making applications for employment in a variety of posts but with limited success. However, this limited success, as referred to below, gave the tribunal encouragement that the claimant will be able to obtain future permanent employment sooner rather than later. He was successful, at interview, for a cabin crew post with a budget airline, but was not offered a post, pending the outcome of these proceedings and provided there are vacancies at the relevant time. In addition, he successfully obtained a temporary post from April to October 2014 (for the ‘Summer’ season) with P&O Ferries, in a customer care role. His earnings vary but it was not disputed he was in receipt of an average wage of £235.54 per week, for the said period.
3.1 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 –
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates [tribunal’s emphasis] to the conduct of the employee,
...
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) if a duty or restriction imposed by or under a statutory provision.
...
(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 154(1A) of the 1996 Order provides where:-
“(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason,
(b) an award of compensation falls to be made ... and
(c) the amount of an award ... is less than the amount of four weeks’ pay,
the industrial tribunal shall, subject to Paragraph (1B) increase the award ... to the amount of four weeks’ pay.
(1B) An industrial tribunal shall not be required by Paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.”
3.2 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.
Further, in this matter, the representative of the claimant accepted, as referred to previously, that there had been no failure by the respondent to comply with the said statutory disciplinary/dismissal procedures. In these circumstances, no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order, therefore, arose to be determined by the tribunal in this matter (see further Venniri v Autodex Ltd [UKEAT/0436/07]).
3.3 In relation to the claimant’s claim of ‘ordinary’ unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, there was no dispute by the representatives that the burden was 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], where it is established in relation to the issue of fairness, there is no burden of proof on any party.)
3.4 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.”
As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral’ burden of proof (see further DSG Retail Ltd v Mackey [2013] UKEAT/0054/13 and Singh v DHL Services [2013] UKEAT/0462/12]).
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.”
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’.”
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. 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 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.”
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 ... .”
3.5 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 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, it was held by the Court of Appeal:-
“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. ... .”
3.6 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:-
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.”
3.7 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 advise 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 a recent decision of the Employment Appeal Tribunal in the case of Blackburn v Aldi Stores [2013] UKEAT/0185, the Employment Appeal Tribunal, in a case of unfair constructive dismissal, held that, where an employee was denied an effective appeal in relation to an appeal against a decision on foot of the claimant’s grievance, because it was decided by the same manager who took the original decision, this could be a breach of trust and confidence for the purposes of such a claim. The present proceedings, being a case of ‘ordinary’ unfair dismissal, are clearly based on a very different factual scenario. However the Employment Appeal Tribunal, in the above decision, emphasised that a right to an appeal is a significant right in the employment context. It must also be noted it has long been established that a failure to hold a proper appeal can render a ‘direct’ dismissal unfair (and will be more significant where the procedure is contractual) – see West Midlands Co-Operative Society Ltd v Tipton [1986] IRLR 112.
The above dicta, in relation to the importance of an appeal procedure, clearly may have relevance to any consideration of issues of uplift, if there is a failure to provide an appeal under the statutory dismissal procedure, where that procedure applies.
3.8 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. 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. 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 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).
3.9 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. A Polkey reduction therefore required an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.
3.10 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).
3.11 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%.
3.12 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed. Using its common sense experience and sense of justice in the normal case, the tribunal would require to assess for how long the employee would have been employed but for the dismissal. However, it is for the employer who 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, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself.
As Elias J stated in his judgment:-
“The mere fact an element of speculation was involved was not a reason for the tribunal 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 the correct test is ‘predictive’ – ‘could the employer fairly have dismissed and what were the chances that the employer would have done so’. In a recent decision, in the case of Dev v Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach:-
“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. It is well established that the latter is the correct approach ... (see further Ministry of Justice v Parry [2013] ICR 311 ...).”
In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd v Andrews and stated:-
“ ... If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely. Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... .”
3.13 In light of the facts as found by the tribunal, it is necessary to briefly refer to the issue of inconsistency of treatment of the claimant by the respondent, which, initially, was strongly relied on by the claimant and his representatives, in relation to the issue of fairness of his dismissal. However, in his closing oral submissions, the claimant’s representative, properly in the tribunal’s judgment, recognised that, on the evidence as given to the tribunal by the witnesses during the course of the hearing, and in light of the guidance authorities set out in Harvey on Industrial Relations and Employment Law, Volume 1, D1, Paragraphs 1039 - 1043, it would not be possible for the claimant to show the necessary degree of similarity between his situation and those of others, which he would be required to do for the purposes of establishing unfairness arising out of inconsistency of treatment. In these circumstances, it was not necessary for the tribunal to consider further the guidance and legal authorities referred to above for the purposes of determining the issues in these proceedings.
3.14 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 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. 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.”
3.15 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.
3.16 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).
3.17. In relation to the issue of the relevance, or otherwise, of ‘warnings’ in conduct cases, there has been guidance given in a series of decisions, in particular in the Employment Appeal Tribunal; albeit it must be remembered that each case depends on its own facts. Indeed, neither representative, was able to point to any case law ‘on all fours’ with the present case and the facts as found by the tribunal, as set out above. However, subject to the foregoing, in the case of Wincanton Group PLc v Stone [2013] IRLR 178, Langstaff P, at Paragraph 37 of his judgment, set out a summary of the law on (earlier) warnings in misconduct cases:-
(1) The tribunal should take into account the fact of that warning.
(2) A tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a tribunal is entitled to give that such weight as it sees appropriate.
(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the tribunal is satisfied as to the invalidity of the warning.
(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore tribunal should be alert to give proper value to all those matters.
(5) Nor is it wrong for a tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior [tribunal’s emphasis] to the dismissal that falls for consideration.
(6) A tribunal must always remember that it is the employer's act that is to be considered in the light of Section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.”
Further, in a recent judgment of the Court of Appeal in Davies v Sandwell Borough Council [2013] EWCA Civ 135 the Court emphasised the need for a restrictive approach to the question when it is legitimate for a tribunal considering the fairness of a dismissal to go behind a final warning given in the past [tribunal’s emphasis] and concluded:-
“There would need to be exceptional circumstances for going behind the earlier (tribunal’s emphasis) disciplinary process and in effect re-opening it.” [per Beatson LJ)
Mummery LJ in Davies v Sandwell Borough Council pointed out that it is not the function of the tribunal to sit in judgment upon the substantive matters on which the written warning is based but they do need to be satisfied that the final warning is issued in good faith. In Paragraph 20 in that case, Mummery LJ added:-
3.18 In a recent decision of the Employment Appeal Tribunal, in the case of Way v Spectrum Property Care Ltd [2014] UKEAT/0181, HH Judge Shanks confirmed that the relevant law in relation to warnings is to be found in the cases of Davies and Wincanton Group PLc, referred to above, and that:-
“In short, the test of an unfair dismissal is always that laid down in Section 98(4) of the Employment Rights Act, namely whether the employer acted reasonably, in all the circumstances, in treating the reason for dismissal as sufficient. When an Employment Tribunal is considering whether an employer has acted reasonably in dismissing an employee, the employer is entitled to rely upon an earlier warning [tribunal’s emphasis] unless that warning was issued in bad faith, with no grounds, or in circumstances which were manifestly in appropriate. The case has suggested that where an appeal against a final written warning was available but not pursued by the employee, there would need to be exceptional circumstances before the Employment Tribunal would re-open the warning. Mr Ustych, on behalf of the claimant/appellant challenged the notion that there had to be ‘exceptional circumstances’ and he said that that notion is based on an obiter dictum in Davies v Sandwell by Beatson LJ at Paragraph 38. [See previous reference to same.] It does not seem to me that I need to resolve exactly whether the test is ‘exceptional circumstances’ or something less; it is certainly right that account must be taken of any appeal process.”
HH Judge Shanks also referred, in particular, to Paragraph 4 of the guidance of Langstaff P in Wincanton.
3.19 In light of the facts as found by the tribunal in this case, it is also appropriate to refer to the decision of Lady Stacey, in the Employment Appeal Tribunal in Scotland, in the case of Rooney v Dundee City Council [2013] UKEATS/0020. In the decision, Lady Stacey approved the guidance set out in Wincanton. In particular, it is instructive to set out below the head note in Rooney, namely:-
“The claimant was employed as a cashier supervisor by the respondent. Her employment began in 1985 and ended on 30 March 2012 when she was dismissed. The claimant had received a final written warning in connection with an incident related to failure to follow instructions which took place on 9 August 2010. The essential complaint against her was that she had disregarded an express instruction from a Ms Russell, who was senior to her. Following a disciplinary hearing on 10 September 2010 the claimant received a final written warning which was to stay on her record for 15 months. She appealed against that but no appeal was ever heard. A further incident took place on 2 December 2011 when the claimant failed to follow instructions given to her. A disciplinary hearing was heard in March 2012, following which she was dismissed. The person conducting it was aware of the final written warning previously put on her record and was aware that the appeal had not been determined. The appellant appealed against the decision to dismiss her and the decision was upheld on appeal. The Employment Tribunal found that the dismissal was not unfair. On appeal to the EAT, the claimant sought to argue that the ET had misapplied the law in relation to the original final warning. Held the ET did not err in law. There was no reason for the ET to hear evidence on the reason for the imposition of the first final warning as there was nothing to indicate that it was manifestly inappropriate or in any way invalid. Further, the ET considered fully the fairness of the dismissal, including the circumstance that there was an appeal outstanding. It reached the view that the decision to dismiss was a decision which a reasonable employer could have reached. There is no error in law and the appeal is dismissed.”
3.20 In a recent decision, in the case of Sweeney (deceased) v Strathclyde Fire Board (2013) UKEATS/0029/13, Lady Stacey has again considered the issue of a final written warning which had appeared on an employee’s personnel record. On the appeal in the Sweeney (Deceased) case, it was agreed the respondent/employer would not have dismissed the claimant/employee but for the final written warning. This clearly had relevance to the issues in the present proceedings. As a consequence, both representatives were invited to make further written submissions, which both subsequently did. A central issue in the appeal was whether the final written warning should have been taken into account by the employer, in circumstances where, as succinctly stated in the grounds of appeal:-
“A final written warning dated 31.8.10 cannot be relevant to conduct that pre-dates it, as a matter of law.”
In the circumstances, it is appropriate to set out the factual matrix in the Sweeney (Deceased) case in some detail. On 30 July 2010 the claimant was charged with assault which had taken place in or about June 2010. He pleaded guilty and on 30 March 2011 he received a sentence of community service. After the assault, but before the disposal of the court proceedings, the claimant was given, on 31 August 2010, a Final Written Warning for unauthorised absence from his post. The warning was stated, inter alia, “to be noted on your personnel record and will stand to be admissible against any further misdemeanour for a period of 18 months from the date of this letter. 29 February 2012”. After a disciplinary hearing, arising out of charges relating to the conviction for assault, the claimant was dismissed on 20 September 2011, after the employer had taken into account the final written warning, as referred to previously.
In doing so, in the letter of dismissal, it was stated, inter alia:-
“Before deciding whether disciplinary action is appropriate and at what level the Chairperson should consider the employee’s disciplinary and general record ... Disciplinary action is cumulative so if an employee has an outstanding warning on their record, any future action taken must be at least at the next level on the disciplinary scale ... .”
In the course of the judgment, (Paragraph 15), by Lady Stacey reference is made to the finding by the Employment Tribunal that the dismissing officer felt ‘his hands were tied and he had no alternative but to dismiss him for gross misconduct’, in light of the provision in the respondent’s Handbook, which stated that:-
“Disciplinary action is cumulative so if an employer [sic] has an outstanding warning on their record any future action must be at least at the next level on the disciplinary scale.”
(See letter of dismissal above and reference to said provision.)
3.21 Both representatives in the course of their further submissions relied heavily on Paragraph 36 of Lady Stacey’s judgment. In those circumstances, the tribunal consider it necessary to set out the paragraph in full as it summarised, in essence, her conclusions on the issue:-
“36 In my opinion, the respondent was entitled to take into account all that happened on the record of the claimant. Mr Napier’s submissions about the ACAS Code are to be preferred to those of Mr Bryce. The Code does not deal with the situation with which the respondent was faced. Similarly, the cases of Airbus and Thomas v Diosynth are not in point. They do not deal with the same situation. I do not accept Mr Bryce’s argument that the final written warning requires to be construed as referring only to misconduct taking place after the date of the warning. Rather I accept Mr Napier’s position broadly to the effect that a written warning final or otherwise is a fact which a reasonable employer is entitled to have in mind. In this case the respondent dealt with the disciplinary offence relating to absence before the claimant pleaded guilty to assault. The respondent was aware from the claimant’s position at the internal appeal that the claimant regarded the matters as linked, both being due to pressure in his life. The fact is however that the respondent dealt with the matters separately as they became aware of them. There was no argument from the claimant at the disciplinary procedure regarding the absence offence that other matters were current and all should be dealt with together. The respondent’s policy on multiple incidents of misconduct happening during the subsistence of a warning is clear. Plainly a reasonable employer will not be hidebound by policy and will require to consider each case on its own facts. Such an employer will however be entitled to abide by its policy unless there is good reason why it should not.
In the present case, the respondent had a policy which would involve a person who committed misconduct while on a final written warning being dismissed, depending always on the nature of the misconduct. In the present case, the claimant committed two acts of misconduct. One was the behaviour which resulted in the criminal convictions; the other was the unauthorised absence. The respondent found each of them to be conduct which merited a final written warning and it was not argued before me that the respondent had acted unreasonably in so doing. It seems to me that the respondent was entitled to regard the facts, which were that the claimant had committed both of these acts of misconduct, as leading to a situation in which he put at risk his continued employment. The respondent considered all of the mitigating circumstances, including his many years of good service and his explanation for the criminal convictions. Nevertheless, it took the view the policy which dictated that a person who had committed more than one offence which merited a final written warning would require to be dismissed should not be displaced, despite the mitigating factors. I appreciate that the policy is directed towards a second act of misconduct during the period in which a final warning is live. I do not accept Mr Bryce’s analysis of the nature of a warning. While it is correct to argue that a warning is an admonition that tells the employee that future misconduct will have certain consequences, it is in my opinion more than that. It is also a recording of misconduct in the mind of both employer and employee. Mr Napier submitted that a warning is ‘Janus like’ in that it looks both ways. I accept that submission. I am of the view that the respondent was entitled to look at the claimant’s record when deciding on the disposal in the disciplinary procedure relating to the criminal convictions. The respondent was entitled to take notice of a finding of misconduct which was marked by the imposition of a final written warning. In my opinion the respondent was absolutely entitled to proceed as they did. That being so it cannot be said under Section 98(4) that the respondent acted unreasonably when one considers all the circumstances of the case ... .”
3.22 Interestingly, both representatives in their further written submissions drew strength from the above Paragraph 36 of the judgment in Sweeney (Deceased), insofar as each considered certain parts thereof assisted their respective clients. The claimant’s representative emphasised, in particular, the reference in the paragraph to the reliance by the employer on the terms of the procedure in the Employee’s Handbook, as set out above, which he strongly contrasted with the relevant terms of the respondent’s procedures in the present proceedings as set out in Paragraph 2 of this decision, and he submitted “ ... unlike Strathclyde Fire Board’s Policy which was cumulative in nature and did not give the disciplinary authority any choice, the Northern Ireland Civil Service policy specifically is not a ‘rigid code’”. He concluded therefore that, in the present proceedings, unlike the decision in Sweeney (Deceased), the relevant dismissing officer, within the terms of the respondent’s procedures, had a discretion whether to dismiss. In contrast, the respondent’s representative, relied strongly, in particular, on the first and last eight lines of the paragraph, as set out above, and submitted it showed the ability of the employer “to take into account a final written warning relating to different misconduct and issued after the date of the commission or alleged commission of the misconduct immediately in question”.
3.23 In the course of her judgment, as seen above, Lady Stacey made reference to the decisions in the case of Air Bus UK Ltd v Webb (2008) EWC Civ49 and Thomson v Diosynth (2006) SLT 323. These were also referred to by the representatives in the course of their written and oral submissions in the present proceedings. However, as recognised by the representatives in the present proceedings, neither decision expressly dealt with the ‘retrospective issue’. Lady Stacey, in Sweeney (Deceased), felt neither gave her assistance with the factual issues, as outlined above, which she had to resolve. Indeed, in this tribunal’s judgment, similar considerations arise in the present proceedings.
3.24 It also has to be recognised that Sweeney (Deceased), as with the other decisions referred to previously, is again not ‘on all fours’ with the factual situation, as found by the tribunal, in the present proceedings. However, the tribunal found it mindful to note that Lady Stacey, consistent with her approach in the Rooney case, held in Sweeney (Deceased) that the respondent/employer, on the facts, which included, inter alia, the terms of any relevant procedure, was entitled to take into account all that appeared on the record of the claimant/employee. On the facts, she did not accept that the final written warning required to be construed as referring only to misconduct taking place after (tribunal’s emphasis) the date of the warning; but rather she found that a written warning, final or otherwise, was a fact which a reasonable employer was entitled to have in mind.
4.1 As stated previously, at the commencement of this substantive hearing, the claimant’s representative informed the tribunal that the claimant was seeking, by way of remedy, an order for reinstatement and/or re-engagement, if he was successful in his claim of unfair dismissal. In such circumstances, pursuant to Article 146 of the Employment Rights (Northern Ireland) Order 1996, it is necessary for the tribunal to:-
(a) explain to the claimant what orders may be made under Article 147 and what circumstances they may be made; and
(b) to ask whether he wishes the tribunal to make such an order;
and if the claimant expresses such a wish the tribunal may make an order under Article 147. If no Order is made under Article 147, the tribunal is required to make an award of compensation for unfair dismissal. As agreed, in view of the wish expressed by the claimant to the tribunal, during the course of the hearing, heard evidence relevant to the determination of the issue whether any such order should be made by the tribunal, pursuant to Article 147 of the 1996 Order.
Insofar as relevant and material, the 1996 Order provides as follows:-
“Article 147
An order under this Article may be —
(a) an order for reinstatement (in accordance with Article 148),
(b) an order for re-engagement (in accordance with Article 149), as the tribunal may decide.
Article 148 – Order for reinstatement
(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.
...
Article 149 – Order for re-engagement
(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.
...
Article 150 – Choice of order and its terms
(1) In exercising its discretion under Article 147 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account —
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply with an order for reinstatement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3) In so doing the tribunal shall take into account —
(a) any wish expressed by the complainant as to the nature of the order to be made,
(b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
(4) Except in a case where the tribunal takes into account contributory fault under Paragraph (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.
(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of Paragraph (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.
(6) Paragraph (5) does not apply where the employer shows—
(a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or
(b) that —
(i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and
(ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.”
4.2 It is long been recognised that a tribunal has a wide discretion in deciding whether either order is appropriate. If a claimant has expressed a wish that such an order of reinstatement/re-engagement should be made, the main issues for a tribunal to consider, pursuant to the legislative provisions, are:-
“(a) whether it is practicable for the employer (or, in the case of re-engagement, when relevant, an associated employer or successor) to comply with the order; and
(b) whether the employee has caused or contributed to his own dismissal.”
In a recent decision of the Court of Appeal in Northern Ireland, in the case of David Lewis v McWhinney’s Sausages Ltd [2013] NICA 47, Morgan LCJ, after noting that the appellant had indicated a wish to be reinstated and there was no finding that he had caused or contributed to his dismissal, found that the only issue to be determined by the tribunal was that of practicability. In relation to that issue he stated:-
“18 Both parties relied on Central and North West London NHS Foundation Trust v Abimbola UKEAT/0542/08/LA for the guiding principles on this issue. That was a case where a psychiatric nurse had been dismissed for gross misconduct for allegedly holding a patient in a headlock. The tribunal found that there was not sufficient evidence to support a reasonable belief in the alleged misconduct. The tribunal ordered reinstatement. On appeal against the remedy the EAT overturned the order for reinstatement on the facts of the case. These included the fact that the claimant had lied in the remedy hearing about his earnings during the period of his dismissal and the fact that the employer genuinely believed that he was guilty of the headlock incident.
19 The important issue of principle, however, of which this case is an example, is that re-employment may be rendered impracticable because of the loss of the necessary mutual trust and confidence between employer and employee. In this case at Paragraph 7 of its remedies judgment the tribunal expressly found that mutual trust and confidence had entirely broken down as a result of which reinstatement was not practicable. The tribunal noted that the appellant realistically accepted that to be the case. The evidence indicated that the mood of the meeting of 18 May 2010 became fraught and difficult. The appellant asserted that there was favouritism to family. Angela Gibson felt threatened by the appellant’s conduct. Even the appellant in his submissions to this court acknowledged that he ‘knew that things might be difficult for a short period of adjustment’.
20 The issue for this court is whether there was any error of law in the approach of the tribunal to the reinstatement issue. The basis of the decision not to make a reinstatement order was the breakdown of trust and confidence in the employment relationship. The circumstances in which an appeal court will interfere with a reinstatement decision on perversity are very limited (see Clancy v Cannock Chase Technical College [2001] IRLR 331). The matters set out at Paragraph 19 were sufficient to sustain the tribunal’s finding on this issue. There was no error of law.”
In the case of Arriva London Ltd v Eleftheriou [2012] UKEAT/0272/12, Langstaff P gave some guidance in relation to the inter-relationship between issues of reinstatement/re-engagement and issues of a Polkey deduction. In that case, the Employment Tribunal had found that an employee bus driver, dismissed procedurally unfairly for capability reasons, would have been 60% likely to have been fairly dismissed given time and proper procedures. The employee had fully recovered as of the date of hearing, and it was ordered that he should be reinstated; but the monetary compensation payable between dismissal and reinstatement was reduced by 60%. The parties agreed, prior to the appeal, it was wrong to make any deduction, so subject to the argument that the discretion to order reinstatement was wrongly exercised for failure to take account of the Polkey determination, the present appeal succeeded. The Employment Appeal Tribunal held ‘Polkey’ related to compensation, not to the statutorily prior enquiry into whether reinstatement should be ordered.
4.3 The case of Rembiszewski v Atkins Ltd [UKEAT/0402/11] makes clear that the issue of practicability of reinstatement/re-engagement, as defined above, has to be considered at the time of the submissions hearing, ie at the end of the tribunal process and not at any earlier point of time:-
“Whether an Order for re-employment is to be made is to be judged as of the date that any such re-employment would take effect. In practice that is likely to be on the date on which the Employment Tribunal has received all the material on this issue put before them by the parties.”
In determining the meaning of ‘practicability’, some guidance has been given by the Court of Appeal in the case of Port of London Authority v Payne [1994] IRLR 9 when Neill LJ stated:-
“The test is practicability not possibility ...
The standard must not be set too high. The employer cannot be expected to explore every possible avenue which ingenuity might suggest. The employer does not have to show that reinstatement or re-engagement was impossible. It is a matter of what is practicable in the circumstances of the employer’s business at the relevant time.” [Paragraph 57]
In Coleman v Magnet Joinery Ltd [1974] IRLR 343, Stevenson LJ emphasised that what was practicable was not to be equated with what was possible, and it was necessary for the tribunal to consider the industrial relations realities of the situation.
In Oasis Community Learning v Wolff [2013] UKEAT/0364/12, Underhill J, after reciting the relevant legislative provisions, stated:-
“10 The effect of those provisions is that in a case where an unfairly dismissed employee wishes to be reinstated or re-engaged, the tribunal must first consider whether to make such an order and should only make a compensatory award when it has made a positive decision against reinstatement or re-engagement. It is sometimes said that this reflects the intention of Parliament that reinstatement or re-engagement, rather than pecuniary compensation, should be the ‘primary’ remedy for unfair dismissal or that there is a ‘presumption’ in their favour. That is in one sense true, but it is necessary nevertheless to appreciate the form in which that intention, or presumption, is enacted. It consists simply in providing that those remedies be considered first : on such consideration the tribunal’s discretion is a general one, albeit that Section 116 prescribes certain specific factors to which it has to have regard [Article 150 of the 1996 Order]. It is of course well-known that orders of reinstatement and re-engagement are made in only a very small proportion of successful unfair dismissal cases (although figures do not exist to ascertain to what extent that is because they are not sought rather than because they have been refused).”
Indeed, in this tribunal’s experience, there have been very few cases in Northern Ireland where Orders for Reinstatement and/or Re-engagement, have been made by an industrial tribunal and it is apparent that each case, where such an order has been made depended very much on its own facts. On the particular facts of the Wolff decision the Employment Tribunal held that the tribunal was entitled to make an Re-engagement Order for the claimant to work at a different workplace, although he had made serious allegations against colleagues/managers at another workplace. These were not, on the facts, such as to render it impracticable for him to re-engaged at a different workplace in a different part of Great Britain. The Employment Appeal Tribunal found, on the particular facts, that the Employment Tribunal was entitled to make such an Order.
In Central & Northwest London NHS Foundation Trust v Abimbola [UKEAT/0542/08], which was approved by the Court of Appeal in Northern Ireland in Lewis v McWhinney’s Sausages Ltd, referred to previously, His Honour Judge Clark reviewed the authorities, stating:-
“14 Although orders for reinstatement or re-engagement are the primary remedy for unfair dismissal, we believe that historically only about 3% of successful unfair dismissal claims result in an order for re-employment in one or other of these forms. By Section 114(1) of the Employment Rights Act 1996, an order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. That is precisely the effect of the Employment Tribunal’s order in this case. Re-engagement, with which we are not concerned, requires the employer to re-employ the claimant on comparable, but different terms from those which he employed prior to dismissal.
15 Employment Tribunals have a wide discretion in determining whether or not to order reinstatement. It is essentially a question of fact for them. However they must take into account three factors under Section 116(1) ERA;
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply with an order for reinstatement, and
(c) whether the complainant caused or contributed to his dismissal whether it would be just to order his reinstatement.
16 In the present case the claimant asked for reinstatement; he was found not to have contributed to his dismissal, therefore the sole mandatory issue before the Employment Tribunal was whether it is practicable for the respondent to comply with an order for reinstatement.
17 As the Court of Appeal made clear in Port of London Authority v Payne [1994] IRLR 9, the scheme of legislation involves a two-stage approach. At Stage 1 (the first remedy hearing) the Employment Tribunal must make some determination as to the practicability as to reinstatement (per Neil LJ, Paragraph 46). However such a determination is provisional at that stage. If the employer fails to comply with an order for reinstatement, at a second stage remedy hearing, in addition to making ordinary compensatory and basic award for unfair dismissal, the Employment Tribunal shall also make an additional award of between 26 and 52 weeks’ pay unless the employer proves on the second occasion that reinstatement is in fact impracticable. At that stage the Employment Tribunal will make an final determination of the practicability question (ERA Section 117(3)). In reviewing the earlier Employment Tribunal cases. ...
... .
20 What does ‘impracticability’ mean in this context? Practical means more than possible. For example in Coleman v Magnet Joinery Ltd [1975] ICR 46, re-engagement of the unfairly dismissed employees, although possible, would have led to industrial strife, the Court of Appeal held that re-engagement was not practicable. Further, loss of the necessary mutual trust and confidence between employer and employee may render employment impracticable. Ilea v Gravette is a relevant example. ...”
In Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 2400 - 2409, it is stated:-
“If the employee has caused or contributed to his dismissal, this factor must be taken into account by the tribunal when considering reinstatement or re-engagement. Obviously it is going to be only in the most exceptional circumstances that a tribunal will order reinstatement of an employee who has contributed to the dismissal in a blameworthy sense, for why should he then be treated as though he had never been dismissed? But in these circumstances an order for re-engagement may sometimes be appropriate, with the tribunal reflecting the employee’s fault and the terms on which re-engagement is ordered. In Boots Company PLc v Lees-Collier [1986] IRLR 485, the Employment Appeal Tribunal held that, where a tribunal has found that the employee did not contribute to his dismissal so as to justify any reduction in his compensation, it could not properly conclude that he had so contributed when considering whether the remedies of reinstatement or re-engagement should be granted, ie the test of contributory fault is the same in both context. Furthermore, having determined this question in relation to compensation, it was not necessary to address the point again in terms when deciding whether or not reinstatement is appropriate. However if a tribunal errs in law in its assessment of contributory fault, this may in turn provide a justification for interfering with an order it has made for reinstatement or re-engagement (see, for example, Nairn v Highlands & Islands Fire Brigade [1989] IRLR 366).
In a recent decision of the Employment Appeal Tribunal, in the case of British Airways Plc v Valencia (UK EAT/0056/14), Mrs Justice Simler confirmed that the legislative provisions in Great Britain (which are in similar terms in Northern Ireland) requires consideration of reinstatement first. Only if a decision is made not to make a Reinstatement Order, does the question of re-engagement arise.
In the course of her judgment, Simler J stated, in relation to the factors to be taken into account, when deciding whether to make a Reinstatement Order:-
“9. Practicable in this context means more than merely possible but ‘capable of being carried into effect with success’: (Coleman v Magnet Joinery Ltd [1975] ICR 46)
10. Loss of the necessary mutual trust and confidence between employer and employee may render re-employment impracticable. For example, where there is a breakdown in trust between the parties and a genuine belief of misconduct by the employee on the part of the employer, re-instatement or re-engagement will rarely be practicable: Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680.
...
11. Similarly in ILEA v Gravett [1988] IRLR 497 (albeit on very different facts), the EAT accepted that a genuine belief in the guilt of an employee of misconduct, even if there were no reasonable grounds for it, was a factor that had to be weighed properly in deciding whether to order re-engagement.
12. So far as contributory conduct is concerned, this is relevant to whether it is just to make either order and, in the case of a re-engagement order, on what terms. In cases where the contribution assessment is high, it may be necessary to consider whether the level of contribution is consistent with the employer being able genuinely to trust the employee again: United Distillers v Vintners Ltd UKEAT/1471/99 ...”
In United Distillers, the Employment Tribunal had held, on the facts, that Orders for reinstatement would be practicable; but an Order for Reinstatement would not be just in view of the high level of contribution (80%). It held re-engagement would be just because the contributory conduct could be reflected by making no arrears of pay award and thereby obviate any injustice to the employer. However, on an appeal, the EAT held it was wrong to make a re-engagement Order, which, in reality, was to reinstate the employee to his previous role on the same terms, although it had already held reinstatement would not be just. On these particular facts, the EAT held it was inevitable, when considering whether it was just to make a re-engagement Order that the tribunal would have also found it was not just to make such an Order.
In Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680, Lord Johnson, when emphasising the task of the tribunal when approaching this issue of remedy, in the context of misconduct which involved timekeeping and clocking offences, stated as follows at Paragraph 10 of his judgment:-
“ ... We are persuaded in this case it is not practical to order re-engagement against the background of the finding that the employer genuinely believed in the substance of the allegations. It may seem incongruous that where a tribunal goes on to categorise the investigations into the belief as unfair and unreasonable, nevertheless the original belief can find a decision as to remedy and the practicability of re-engagement but it is inevitable to our thinking that when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential band of trust and confidence that must exist between an employer and employee, inevitably broken by such investigations and allegations, can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest of cases where there is a breakdown in confidence as between the employer and the employee. Even if the way the matter is handled results in a finding of unfair dismissal, the remedy, in that context, invariably to our minds will be compensation.”
4.4 It was not disputed that, if the tribunal decided not to make any Order of Reinstatement/re-engagement, the claimant, in the alternative, had made a claim, by way of remedy, as part of any compensatory award which might be made by the tribunal, for loss of his pension. There was no dispute between the parties this was a recognised head of claim and, indeed, the report, which was obtained by the claimant’s representative, from Ms N Niblock, a very experienced Chartered Accountant in the area of personal injury litigation of ASM Chartered Accountants, dated 14 May 2014, was not in dispute, subject to liability. In this context, there were no issues or challenge raised by either representative about the actual calculations of the various sums, as set out in the report. However, the report sets out, in essence, two methods for the calculation of the claimant’s loss of pension, namely:-
“(1) a calculation based on recommendations contained in the booklet (Compensation for Loss of Pension Rights – Employment Tribunals 3rd Edition) (‘the Guidance Booklet’); and
(2) a calculation based on the Ogden Tables Methodology (which is an approach used regularly in the High Court for personal injury damages awards) for calculation of relevant multipliers.”
The report stated, properly in the tribunal’s judgment, that the approach to be adopted was a matter for the tribunal. The Guidance Booklet, referred to above, was last issued in 2003 and included in Appendix 2 a memorandum by the Government Actuary for assessing loss of occupational pension scheme rights following a finding, inter alia, of unfair dismissal. The Guidance recommends that tribunals use one of two alternative approaches to the calculation of pension loss ‘the substantial loss approach’ and the ‘simplified approach’. The Guidance sets out in some detail the two approaches but, in summary, it states:-
“The Simplified Approach (Paragraph 4.11)
The Simplified Approach is set out in Chapters 5, 6 and 7. It involves three stages –
(a) in the case of a final salary scheme, the loss of the enhancement to the pension already accrued because of the increase of salary which would have occurred had the applicant not been dismissed,
(b) in all cases, the loss of rights accruing up to the hearing; and
(c) the loss of future pension rights.
These last two elements are calculated on the assumption that the contribution made by the employer to the fund during the period will equate to the value of the pension (attributable to the employer) that would have accrued ... .
The Substantial Approach (Paragraph 4.12)
The substantial loss approach, by contrast, uses actuarial tables comparable to the Ogden Tables [tribunal’s emphasis] to assess the current capitalised value of the pension rights which would have accrued up to retirement. There may be cases where the tribunal decides that a person will return to a job at a comparable salary, but will never get a comparable pension see Bentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364. In such cases the substantial loss approach may be reached even where the future loss of earnings is for a short period. But it must be remembered that loss of pension rights is the loss of a fringe benefit and may be compensated by an increase in salary in new employment.”
The approach taken by a tribunal can make a substantial difference to any compensation recovered for loss of pension rights. The Guidance sets out in Paragraphs 4.13 – 14, some assistance as to which approach a tribunal should take in any particular circumstances:-
“4.13 Experience suggests that the simplified approach will be appropriate in most cases. Tribunals have been reluctant to embark on assessment of whole career loss because of the uncertainties of employment in modern economic conditions. In general terms the substantial loss approach may be chosen in cases where the person dismissed has been in the respondent’s employment for a considerable time, where the employment was of a stable nature and unlikely to be affected by the economic cycle and where the person dismissed has reached an age where he is less likely to be looking for new pastures. The decision will, however, always depend on the particular facts of the case.
4.14 More particularly, we suggest the substantial loss approach is appropriate in the following circumstances –
(a) when the applicant has found permanent new employment by the time of the hearing, and assuming no specific uncertainties about the continuation of the last job, such as a supervening redundancy a few months after dismissal; further the tribunal has found the applicant is not likely to move on to better paid employment in due course;
(b) when the applicant has not found permanent new employment and the tribunal is satisfied on the balance of probabilities he or she will not find new employment before State Pension age (usually confined to cases of significant disability where the applicant will find considerable difficulty in the job market);
(c) when the applicant has not found new employment but the tribunal is satisfied that the applicant will find alternative employment (which it values, for example, with the help of employment consultants) and is required then to value all losses to retirement and beyond before reducing the total loss by the percentage chance that the applicant would not have continued to retirement in the lost career (see Ministry of Defence v Cannock [1994] ICR 918), subject to our comment below.
The simplified approach becomes inappropriate in these cases because there is a quantifiable continuing loss which can be assessed using the pensions data and Tables 1 to 4 of Appendices 5 and 6. These tables use factors similar to those in the Ogden Tables [tribunal’s emphasis] for personal injury and fatal accident cases. Although tables for pension loss are included in those tables, the tables in this booklet use some different assumptions to those underlying the Ogden Tables (see Appendix 2 – Memorandum by Government Actuary).”
As stated in a recent decision of the Court of Appeal in the case of Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civ 1240, what the factors, as referred to in 4.13 in relation to the use of the substantial loss approach, all have in common , is that they all increase the likelihood that the employee would, but for the dismissal, still have been an active member of the scheme at retirement (see Paragraph 67 of the judgment).
4.5 It was not disputed by the representatives in the present proceedings, that the tribunal has to determine which is the proper approach to follow in any particular circumstances, as suggested in the report. In her report, Ms Niblock relied on the 7th edition of the Ogden Tables which was issued in October 2011. The Ogden Tables are regularly updated. It is necessary to note that, although the Guidance referred, as seen above, to using in the Guidance tables comparable to the Ogden Tables. Those tables in the Guidance are therefore not the same as the Ogden Tables but are merely intended to be comparable to the Ogden Tables. Unfortunately, unlike the Ogden Tables, the tables in the Guidance, and the Guidance itself, have not been updated over the years (the last issue was in 2003). The comparable link between the tables in the Guidance and the Ogden Tables has therefore not been maintained.
It was suggested, the introduction to Ms Niblock’s report, that the Guidance Booklet may have been withdrawn in 2013, as the tables used in it to value pension benefits were no longer considered to be appropriate; albeit it is also suggested the Government’s Actuary Department had said it still may be appropriate guidance in some cases. The report gave no further details and no further evidence was provided in relation to same by either party in relation to any such withdrawal. The tribunal therefore concluded it was still relevant guidance, but subject to what is set out later in this decision.
4.6 The report, in applying the guidance set out in the Guidance Booklet, measured the loss on the ‘substantial loss approach’, contained therein (see cf The Simplified Approach); and there was no dispute by the representatives for both parties that, if the guidance in the Guidance Booklet was to be followed by the tribunal, the substantial loss approach was correct. In the circumstances, the tribunal has not considered it necessary or appropriate to consider further the potential to follow the alternative ‘Simplified Approach’. In any event, in the absence of any other submissions, the tribunal considered it would not have been appropriate to do so, on the facts, as found by the tribunal, in particular, given the claimant’s long service in stable employment (see further the factors set out in the Guidance at 4.13.14; and Sibbit v The Governing Body of St Cuthbert’s Catholic Primary School [2010] UKEAT/007/10).
The major issue for the tribunal to determine was whether to apply the Ogden Tables Methodology or the substantial loss approach, as set out in the guidance contained in the said Guidance Booklet. As was apparent from the report, to apply the Ogden Tables Methodology would result in a considerably lower figure for loss of pension for the claimant in comparison to the potential loss of pension achieved by applying the substantial loss approach (see later). Neither representative addressed the tribunal, in any detail, by way of submission, as to whether the tribunal should apply the substantial loss approach or the Ogden Tables Methodology; albeit both acknowledged there was little relevant authority to assist the tribunal.
In a recent decision, in the case of Chief Constable of West Midlands Police v Gardner [2011] UKEAT/0174/11, Langstaff P, in the Employment Appeal Tribunal, considered the issue of whether it was appropriate to use the methodology set out in the guidance contained in the said booklet or the methodology set out in the Ogden Tables. In the course of his judgment, he referred to the reasoning expressed in the Employment Tribunal’s decision, which seems somewhat similar to what was stated by Ms Niblock in her introduction to her report, in the present proceedings, namely ‘the current edition of the Ogden Tables represents a more up to date reflection of the economic realities and that times economically have changed since 2003’ (when the booklet was published) and that ‘some of the financial assumptions which underlay the 2003 booklet appeared to be out of date’. What does seem certain, however, is that there has not yet been published a 4th Edition of said booklet, which might have been able to give some clarity/certainty to the guidance in this area – especially when the difference in the result is considered, depending on what method of calculation is used by the tribunal. Given this and the increasing importance of pension loss in so many cases, it is to be hoped a 4th Edition of the booklet will soon be published. In this context, the judgment of Underhill LJ in Griffin is of some interest when he stated at Paragraph 81 of his judgment:-
“I add one cautionary point. The Guidance was rightly described by Elias P in Network Rail as ‘extremely valuable’ and its predecessors have been used by Industrial and Employment Tribunals on countless occasions and to good effect. In this appeal neither party has questioned its terms, and the issue has been presented purely on the basis of how they should be understood. But it should not be assumed that that will be the correct approach in every case. The Guidance has no statutory force and the recommendations in it are not gospel. Indeed it Network Rail itself the EAT questioned one aspect of the recommendation about the substantial loss approach ... But there is a more particular reason for its application to be considered critically. There have been a number of important changes in pension law and practice since the current edition of the Guidance was published in 2003 and others are imminent : the extent to which its recommendations on particular points remain valid will increasingly need to be carefully considered. I very much hope that HMCTS and/or Judicial College may give priority to producing an updated version.”
This would suggest that Ms Niblock was not correct, when she stated in her report, the Guidance had been withdrawn in 2003, as the decision in Griffin was issued on 19 September 2014 (see before). However the tribunal was satisfied the comments, albeit orbiter by Underhill LJ, confirmed the conclusions reached by the tribunal about the necessity for new Guidance to be issued. It also has to be remembered that, in Griffin, the Court of Appeal was required to consider whether the tribunal was correct to apply the simplified approach rather than the substantial loss approach; and was not required, as in the present proceedings, to determine whether to adopt the substantial loss approach in contrast to the Ogden Tables Methodology.
Further, the tribunal was satisfied the case of Griffin did not say anything contrary to what had been said by Langstaff P in Gardner, referred to above.
In the circumstances, the tribunal did not consider it necessary to obtain further submissions from the representatives in light of the decision in Griffin, which was issued after the conclusion of the substantive hearing in this matter.
4.7 In the meantime, however, the tribunal was required to make a choice, in circumstances where there is no such clarity/certainty and the actual figures, based on the alternative methods of calculation, are not disputed; but reveal significant differences in total sums for loss of pension.
In Gardner, Langstaff P confirmed that a tribunal is not “bound as a matter of law to adopt the methodology set out in either the Ogden approach or, more particularly, the substantial or simplified approach from the 2003 booklet”. He held in determining the issue whether an ET should adopt Ogden Tables in place of the tables annexed to the Employment Tribunal’s guidelines, “it is not an error of law, to do so, if cogent and credible reasons were articulated for doing so, as they were here, though it was not to be encouraged”. He recognised that, when the Guidance was published in 2003, the authors in adopting the tables annexed were looking for a comparative approach for pensions to the Ogden Tables (see Paragraphs 76 – 78 of the judgment). Unfortunately, as set out previously, the tables in the Guidance have not been updated in the same way as the Ogden Tables. Indeed, this tribunal would suggest this failure is at the heart of the issue which the tribunal has had to resolve. The updated Ogden Tables have clearly taken account of the changed economic realities that have taken place over the last number of years.
The Employment Tribunal, in Gardner, adopted the Ogden approach and, in doing so, noted, in particular, that economic times had changed and the Ogden Tables better reflected modern reality. This tribunal, in the present proceedings, found considerable strength in the reasoning of the Employment Tribunal in Gardner, where it suggested the substantial loss approach, as set out in the booklet, was adopted at a time of economic plenty, whereas in these days of austerity and economic penury, the Ogden Tables better reflected what is happening at present. This is of particular relevance, given the regular updating of the Ogden Tables. Indeed, this was supported by the accountant in the introduction to her report. The Gardner decision suggests, and it does not appear to be disputed, the tables in the said booklet were based upon, in part, the ability of invested money to earn a return of 6.5% a year, at least, gross, which, in its view, no longer applied. This tribunal would share that view and the particular danger for a tribunal in using the approach seen in the Guidance Booklet, in the present circumstances, where the tables contained therein appear to be based on figures, which are no longer applicable at the present time (see further Griffin Paragraph 81 referred to previously).
The tribunal found it difficult to see, in the absence of any detailed argument by the representatives, why there should be such a difference of approach, in the area of compensation in employment tribunal claims in contrast to High Court personal injury claims – not least where such claims of unfair dismissal, in employment tribunals, are often referred to as ‘statutory torts’. In this context the tribunal again noted the attempt in the Guidance to uses tables comparable to the Ogden Tables ; albeit that attempt has not been followed through by updating the Guidance, unlike the Ogden Tables. Indeed, in Gardner, Langstaff P stated at Paragraph 91 of his judgment:-
“91. This is not to say, we hasten to add, that tribunals in modern economic circumstances must adopt the approach urged by the Ogden Working Party.
A tribunal is entitled to address the question of what is full and fair compensation such as would be awarded in a claim in tort in a way which properly answers that question”.
Somewhat unhelpfully he then goes on to suggest a tribunal will find considerable assistance from the 2003 booklet but also personal injury case law and then, despite the foregoing, warns against a ‘pick and mix approach’. Although this tribunal accepts, for the purposes of the present proceedings, the thrust of the reasons for the decision by the employment tribunal in the Gardner decision to apply the Ogden Tables, it is aware that the Ogden Tables, in determining the relevant multiplier, only take account of mortality and accelerated receipt. As seen in Abbey National v Chagger [2009] IRLR 860, a case of discriminatory dismissal, it was acknowledged, in an employment context, that further relevant contingency factors can also arise, such as dismissal for good cause or leaving voluntarily for any number of reasons, a person dying or becoming too ill to work or the employer simply going out of business. Not all of these contingencies will apply to all employment situations, but the only contingency factored into the Ogden Tables is the possibility of the claimant dying (see the factors, referred to previously, in Paragraph 4/12/4.13 of the Guidance, and commented upon in Griffin, which are relied upon when choosing the substantial loss approach). The ‘missing’ contingency in the Ogden Tables, as referred to in Chagger, would normally not be of relevance in choosing the substantial loss approach.
Therefore, in the absence of updated guidance, either in the 2003 Guidance Booklet or by case law (in Gardner the EAT expressly refused to give such updated guidance), the task of this tribunal, in determining the correct approach to the calculation of the claimant’s loss of pension, has been made very difficult. Indeed, this tribunal considered it was entitled to take judicial notice, in the absence of any detailed submissions by the representatives, of the fact that it is well known and recognised that, at present, but also probably into the foreseeable future, the returns on investments are likely to remain low and certainly not at the level on which the 2003 guidance was based (see also Gardner and Griffin). In these circumstances, but not without some hesitation, the tribunal concluded that it should apply the Ogden Tables approach in this particular case. It concluded, in the absence of updated Guidance or case law, it better reflected the present and foreseeable financial circumstances and relevant interest rates etc on return on investments at this time and into the foreseeable future. It did so despite its concerns that the Ogden Tables were not a ‘perfect’ method of calculation, especially in an employment context, where there can be other contingency factors, which are not addressed in the tables, that could arise, for any claimant – but less likely for this particular claimant (see before). However, equally, it felt that the financial issues, in the present and foreseeable economic climate, referred to above, outweighed those concerns; albeit it recognised that by taking this course it meant the financial loss which could be obtained by the claimant, under this head of claim, for his loss of pension would be considerably reduced in comparison to what he would have achieved if the tribunal had applied the ‘substantial loss approach’, as set out in the guidance in the Guidance Booklet published in 2003. By doing so for the above reasons, the tribunal felt it had provided the full and fair compensation required to be awarded for the claimant’s pension loss.
4.8 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 an employee must take reasonable steps to obtain alternative employment. In the case of Wilding v British Telecommunication Plc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who has 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, which is 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 Tenants Together Limited [2009] UKEAT/0358/08) Hibiscus Housing Association Limited v Mackintosh [2009] UKEAT/0534/08 and Beijing Ton Ren Tang (UK) Ltd v Wang [2009] UKEAT00248/09.
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 in 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 P emphasised, in relation to the exercise of the burden of proof by the employer:-
“But without there being evidence (whether by way of direct testimony, or by inadequate answers given by the claimant in cross-examination) adduced by the employer upon 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.”
5.1 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.
5.2 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. Further, it was not disputed that no issue of automatic unfair dismissal arose in this matter. 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 fell within the band of reasonable responses open to an employer on the facts of the case. Every case is fact-sensitive and this particular case is no different (see further Iceland Frozen Foods Ltd v Jones [1983] and the other cases referred to earlier in Paragraph 3.4 of this decision).
The tribunal had considerable concerns about the actions of the respondent throughout this process and, in particular, its investigation of not only the initial allegations of abuse of the flexible working time system in the Fingerprint Section but, in particular, in relation to the actions of AB. Mr Prentice did not carry out a proper investigation of those allegations and there has to be serious concern he was the person asked to do it by Mrs Smyth since the claimant was expressly stating he, Mr Prentice, was turning a ‘blind eye to the abuse’. This theme of ‘management involvement’ in the abuse, as shall be referred to later, was a significant part of the claimant’s case to this tribunal. Having failed to obtain the relevant swipe records of AB, which would have revealed the extent of the abuse taking place at the time, Mr Prentice merely informed Mrs Smyth the ‘issues merited relatively minor redress’. As was subsequently found by the claimant’s representatives, for the purposes of these proceedings, this was not correct and there was significant under-recording by AB of approximately 101 hours and 20 minutes. The difficulty was this finding of Mr Prentice was accepted at face value by Mrs Smyth without further question. There was therefore a failure by senior management, at an early opportunity, to see the abuse taking place in the flexi system; and which was allowed to continue by junior management, who were more concerned about the completion of work than ensuring compliance with the flexi system. Whilst the tribunal has sympathy for the action of Mrs Smyth in accepting the word of her junior manager, whom she clearly trusted to do his job, this initial failure to grasp the problem of abuse by staff of the flexi system, which was condoned by junior management, unfortunately, from the outset, permeated this whole disciplinary process. Clearly, if the abuse by AB had been exposed at an early stage, the issue that subsequently arose in relation to the conduct of the claimant might not have occurred, as there would have been earlier and greater control and supervision of the system by management at all levels. Subsequently Mrs McElveen, in her investigation of the claimant’s conduct, which was the subject matter of his claim to the tribunal, also took the findings of Mr Prentice at face value and accepted them without further question. Both she and Mrs Smyth recognised that, if they had seen the under-recording of AB, as revealed during the hearing, they would have carried out further investigations. However, the claimant, clearly aware of the above shortcomings in the system and the continuing lack of management control, following the Prentice investigation, decided to carry out similar abuse of the system for himself, after he transferred to the Explosives Section, and which ultimately led to his dismissal. It is apparent (see also paragraph 5.7) that his line manager in the Explosives Section, Ms McIntyre, was not exercising the control and supervision of the flexi system expected by senior management such as Mrs Smyth, Mrs McElveen, Mrs Black or indeed Ms Pearson. This was known and clearly recognised by the claimant.
Mrs McElveen investigated the charges brought against the claimant relating to his breach of the Flexi Working Time Code of Practice and fraudulent recording of flexi time. The tribunal found the investigation into the actual charges themselves, made against the claimant, was not open to criticism, for the purpose of these proceedings, given the ultimate admission by the claimant of the charges themselves during the course of Mrs McElveen’s investigation. However, significantly, those admissions were made in the context that the claimant was contending there was a culture of inaccurate reporting, which was allowed to continue by the junior line management on the ground. Mrs McElveen, in her investigation conclusions took little account of this; albeit and this had to be a relevant factor in determining what sanction she was to recommend at the conclusion of her investigation. In her reference to Management Practice she found as a fact, and was clearly influenced by it in recommending dismissal, that the claimant’s ‘previous whistle blowing allegations had been fully investigated within SFO and satisfactory explanations to concerns were provided’. As seen previously, Mr Prentice had not, in fact, carried out a full investigation. Mr Prentice knew AB ‘was badly in deficit’, there were inaccuracies in completion of her sheets and it could be her deficit was even greater; but yet he had told Mrs Smyth the issues merited relatively minor redress. A simple check of the pin records of AB by Mrs McElveen would have shown that there was much greater management problems than suggested in her conclusions. The tribunal is satisfied, given she was making recommendations in a disciplinary process, it would have been reasonable to have carried out such a simple check, given the context of the claimant’s consistent allegation of inaccurate recording allowed by junior management on the ground. Indeed, Mrs Smyth, when deciding to call for the investigation by Mrs McElveen, had herself checked the claimant’s records and found the discrepancies, which led to the charges, for which he ultimately admitted. It is correct, after recommending dismissal of the claimant, Mrs McElveen made limited recommendations for improvements in the management and supervision of the flexi system. She treated this as a separate matter, whereas it was linked to the claimant’s defence to the admitted charges and it would have been appropriate for her to do so when deciding whether to recommend dismissal of the claimant. Indeed, the tribunal is satisfied, on the basis of her evidence, if Mrs McElveen had known the full extent of the failure to investigate the matter by Mr Prentice and that, contrary to what she had set out in her report, this had not in fact been fully investigated and that the assurances given to Mrs Smyth by Mr Prentice were not accurate, the recommendations made by her in her report in relation to Management Practices would have involved even stronger and more pointed criticism of management and their practices in relation to flexi time in FSNI and, in particular, ERU. But, further, it would have required her, when deciding to recommend dismissal, to not only consider his admission but also to consider the full context when deciding whether such a recommendation of dismissal was appropriate; given the serious failures of management, which, unfortunately, she had not found out about, as part of her investigation. This failure was all the more serious because the report was a major document relied upon in the dismissal of the claimant. To recommend dismissal without establishing the full facts of the failures of management was not, in the tribunal’s judgment, the act of a reasonable employer in the circumstances. It has to be remembered this report was a major document relied upon in the dismissal of the claimant.
5.3 Because of the terms of the Framework Agreement between the respondent and FSNI, the recommendation of Mrs McElveen to dismiss the claimant had to be passed to Mrs Black to make the final determination. Again, it is important to emphasise that the claimant, although he again admitted the charges made against him, placed great weight upon the context of the culture in relation to flexi recording, referred to previously. Mrs Black clearly relied on not only the admissions of the claimant but also the report of Mrs McElveen, with its failures, as outlined above. Indeed, Mrs Black found the charge relating to under-recording amounted to fraud and theft. The claimant was never charged with theft. Indeed, although this issue of the culture amongst the staff in relation to flexi time recording and the failures of management in enforcing same was very much a part of the claimant’s defence, in essence of mitigation, following his admissions, it is not expressly addressed by Mrs Black in her letter of dismissal and reason for same. In the tribunal’s judgment, a reasonable employer had to look at the whole context of the admission made by the claimant. This was not done and, in the tribunal’s view, was a serious failure, to which it will be necessary to return later. However, despite that, Mrs Black decided, subject to one matter to be addressed later, dismissal was not appropriate in the circumstances. Indeed the tribunal is satisfied Mrs Black, although she only had Mrs McElveen’s limited report, clearly considered that, despite the admission, that the context of the management failures, albeit not fully revealed by Mrs McElveen’s report, was sufficient mitigation to avoid the sanction of dismissal on these charges in the circumstances. Indeed, if she had decided in fact upon a Final Written Warning or a sanction short of dismissal, the tribunal, given his admissions, would have considered this would have been a reasonable response by the respondent given the full context and, in particular, the failures of management in enforcing proper supervision and control of the flexible working system, which had allowed staff to abuse it; despite the failures to investigate and ascertain the true extent of the management failures. Given his admissions, there could be no doubt, that the respondent had reasonable grounds for its belief in the claimant’s misconduct. The tribunal’s concerns therefore focused on the reasonableness of the actions of Mrs Black in not imposing a final written warning and imposing the sanction of dismissal.
5.4 However, Mrs Black decided to dismiss the claimant, despite her initial intention and the only reason for her so doing was the fact it was drawn to her attention the claimant at the time of her decision on 2 July 2013, had been issued with a Final Written Warning on other charges on 14 June 2013.
5.5 In so deciding, the tribunal noted that Mrs Black, wrongly in the tribunal’s view, failed to seek further submissions, oral or written, from the claimant about the application and/or relevance of the said written warning to her decision to dismiss the claimant. However this failure, in itself, in the tribunal’s judgment, ceased to be of relevance; as the issue was able to be raised by the claimant during the appeal. However, that is not the end of the matter. Mrs Black, having decided initially not to dismiss the claimant, contrary to the recommendation of Mrs McElveen, changed her mind merely because, at the date of her decision, there was another final written warning on the claimant’s employment record at that date. In doing so, she failed to take into account that, upon the charges the subject matter of this disciplinary process, she had concluded dismissal was not the appropriate sanction; but yet she changed that decision merely because of the presence on his record of that further written warning. As stated previously the tribunal accepts a final written warning would have been an appropriate sanction in the circumstances having taken into account the mitigating factors relating to management failures, his length of service and his previous employment record. Mrs Black failed to properly take into account an appeal to this other final warning was pending. To merely state, if the appeal was upheld, the decision to dismiss will be reviewed, was not a reasonable and appropriate response. Indeed, it confirms that the other final written warning, without more, was for Mrs Black sufficient, in itself, to alter her initial decision, without any further consideration or thought (see Wincanton Group PL C v Stone (2013) IRLR178).
5.6 The tribunal considers that the recent decision Sweeney (deceased) can be distinguished on its facts. In particular, the Strathclyde Fire Board’s Policy was clearly relevant to the decision of the Employment Appeal Tribunal. It was cumulative in nature and did not give the disciplinary authority any choice and the disciplinary officer felt, as a consequence, his hands were tied and he had no alternative but to dismiss for gross misconduct. There was no such rigid code under the respondent’s disciplinary procedures. Indeed it expressly stated this and referred to taking into account any mitigating circumstances including an employee’s previous record of service when considering what penalty to impose. Mrs Black, in effect, imposed a rigid code as seen in Sweeney (deceased); whereas that was not the case under the respondent’s procedures. The tribunal accepts that, on the basis of the decision in Sweeney (deceased), Mrs Black was entitled, before reaching her decision, to look at the claimant’s record of employment. At that date, the further final warning had been imposed and was a factor for her to consider. However, that was only one factor and not sufficient of itself, as occurred here, to allow Mrs Black to alter her initial decision and to impose a sanction of dismissal rather than a final written warning. She had to take into account why she had initially decided, despite his admissions, not to impose dismissal, in the context of the management failures to properly supervise the flexi system. In particular, she had to also take into account the timing of the further final written warning, which had only been imposed on 14 June 2013, and after the events the subject matter of the conduct for which he was to be disciplined. Further, it was imposed on the express basis that the warning would be placed on the claimant’s personal file and disregarded for disciplinary purposes after 12 months based on satisfactory conduct – such conduct being in that 12 month period. Mrs Black did not consider any of these matters, which in the tribunal’s view was not a reasonable response on her part.
5.7 Ms Pearson, in relation to the appeal, decided, in essence, to adopt and follow the decision and reasoning of Mrs Black on this issue, which as stated above, the tribunal considers was not a reasonable response in the circumstances for the reasons set out previously. There was no evidence Ms Pearson considered the matters Mrs Black failed to take into account; and, like Mrs Black, she took the view the fact of the further written warning was, in itself, sufficient to impose the sanction of dismissal. Given the importance of the management failures to the initial decision of Mrs Black not to dismiss the claimant, despite his admissions, the tribunal was also very concerned by the failure of Ms Pearson to fully and properly investigate the issue of the texts between the claimant and his line manager Ms McIntrye and, in particular to speak to Ms McIntrye about what was meant by her in the texts. These texts may have been drawn to her attention late in the process by the claimant, but Ms Pearson should have investigated them further, given the importance of the background of management failures to the whole issue of the appropriate sanction to be imposed on the claimant in relation to the admitted charges. This failure meant that in determining the appropriate sanction Ms Pearson in these circumstances, did not have all the relevant information to enable her to do so. The fact these matters were raised on appeal, albeit late, still required them to be investigated properly (see paragraph 3.7 of this decision).
5.8 In the circumstances, the tribunal concluded the claimant had been unfairly dismissed. In light of the tribunal’s conclusions in relation to the failures of the respondent in respect of the decision to impose on the claimant the sanction of dismissal and not a final warning and the failure to take into account matters other than the mere fact of the existence of the other final written warning on his record when deciding to dismiss the claimant, the tribunal does not accept these were failures to follow procedural steps. Even if the tribunal is wrong, the tribunal is not satisfied that it can be concluded, 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 1996 Order. To do so, in the circumstances, would involve too much speculation, not least given the failures of the respondent to take these matters into account at all (see further Software 2000 Ltd v Andrews).
6.1 Having decided the claimant was unfairly dismissed, it was necessary for the tribunal to consider, before determining any financial remedy, whether it should make an Order for Reinstatement and/or Re-engagement, which, as stated previously, the claimant had sought, if he was successful in his claim of unfair dismissal.
In the circumstances, it was necessary for the tribunal to consider whether it was practicable for the respondent to comply with any such Order. As seen in the relevant case law set out in Paragraph 4 of this decision, the test is practicability not possibility. The tribunal, given the size of the Civil Service was satisfied a post could have been ‘found’ for the claimant somewhere else in the wider Northern Ireland Civil Service and indeed probably elsewhere in the Department of Justice. However, Mrs McElveen, Mrs Black and Ms Pearson were all of the view that, because of the claimant’s actions, there had been a fundamental breach of trust, which, in their view, had raised questions about his integrity and trust which therefore made him unsuitable for any continued employment with the respondent. The tribunal was satisfied this was a genuinely held belief by these senior managers in the respondent and that, in the circumstances, the relationship of mutual trust and confidence had indeed broken down. In light of the foregoing, the tribunal did not consider it was practicable to make any such Order. Even if the tribunal was wrong, it did not consider it was appropriate, in any event, to make such an Order in light of its conclusion, as set out later in this decision, in that the claimant had caused/contributed to his dismissal and to a sizeable extent; and it would not be just and appropriate to make such an Order in such circumstances, especially where the senior managers had clearly lost trust in the claimant by his admitted actions.
6.2 In view of the tribunal’s conclusions that the claimant would find it difficult to obtain employment following his dismissal in a general scientific post, in the absence of a formal scientific qualification, and having noted the claimant’s various applications for new employment, his obtaining of a temporary post for the Summer season with P&O Ferries and his limited success at interview for a cabin crew post with a budget airline, the tribunal was satisfied there was no evidence the claimant had failed in his duty to take reasonable steps to mitigate his loss, following his dismissal. Indeed the tribunal was satisfied he was active, as set out above, in trying to do so in the period following his dismissal. The respondent’s representative did not seriously challenge in cross-examination the various attempts made by the claimant to obtain employment and the difficulties faced by him in the state of the present job market and, in particular, for someone without a formal scientific qualification. However, although the tribunal was prepared to make an award of compensation for financial loss up to the date of the hearing, it considered that the period of future loss should not be lengthy. In doing so, the tribunal was satisfied, given his efforts to date, as referred to above, the claimant would be able to obtain future permanent employment sooner rather than later and, in particular, given his undoubted intelligence and period of employment in the Civil Service. The tribunal therefore concluded a reasonable period of future financial loss should conclude in the circumstances on 30 January 2015. In calculating the financial loss, the tribunal took into account the earning received by the claimant in his temporary employment with P&O Ferries.
6.3 In relation to the issue of contributory fault, the tribunal had to consider the actions of the claimant above (see further Paragraph 3.14 of this decision) and not of the employer. Given the admissions made by the claimant in relation to the conduct, the reason for his dismissal, the tribunal was satisfied the percentage deduction for contributory fault had to be sizeable in the circumstances. Further, in deciding that the percentage deduction should be 50%, the tribunal took into account that, initially, the claimant had not admitted to the conduct, in circumstances where he was fully aware of what he was doing was wrong, not least from his allegations of major abuse of the flexible working system in June 2012 by certain members of the Fingerprint Section, but, in particular, AB. Indeed, the tribunal in this context, decided there was considerable strength in the conclusion reached by Mrs McElveen when she stated:-
“My conclusion throughout this process is he has sought to blame others for his actions and continued to deny there was any wrongdoing until the evidence presented meant he could deny them no longer ... I believe DM is sorry but it would be reasonable to conclude that it is a fact more about being sorry that he was caught out ... .”
Having taken into account the decision of the Court of Appeal in Northern Ireland in GM 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 3.15 of this decision) the tribunal was satisfied, having considered the conduct of the claimant caused/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.
7.1 In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant as follows:-
A. Basic award
£450.00 x 1 x 9 (subject to statutory maximum)
£4,500.00
Less £2,025.00 (50% for contributory fault)
£2,025.00
B. Compensatory award
(i) Loss of earning from
3 July 2013 to 2 June 2014
at £1,559.12 per month –
£1,559.12 x 11 = £17,150.32
Less
Earnings from Guernsey
Crewing Services
(P&O Ferries @ £235.54 per week
from 10 April 2014 to 2 June 2014 –
8 x £235.54 £ 1,884.32
£15,266.00
(ii) Loss of earnings from
3 June 2014 to 30 January 2015
at £1,559.12 per month
£1559.12 x 8 £12,472.96
Less
Earnings from Guernsey
Crewing Services
(P&O Ferries @ £235.54 per week
from 3 June 2014 to on or about
1 October 2014 –
17 x £234.54 £ 4,004.18
£ 8,468.78
(iii) Pension Loss
Option 1 (Ogden Tables)
as per Accountant’s Report £ 4,943.00
(iv) Loss of Statutory Rights £ 400.00
Total (i), (ii), (iii) & (iv) £29,077.78
Less 50% for contributory fault £14,538.89
£14,538.89
Total Monetary award (A + B) £16,563.89
7.2 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
7.3 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: 2 – 6 June 2014, Belfast
Date decision recorded in register and issued to parties: