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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cunningham v Jim Reynolds [2015] NIIT 1937_13IT (15 January 2015)
URL: http://www.bailii.org/nie/cases/NIIT/2015/1937_13IT.html
Cite as: [2015] NIIT 1937_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1937/13
CLAIMANT: John Cunningham
RESPONDENTS: 1. Jim Reynolds
2. Mitie Total Security Management Limited
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the 2nd named respondent and taking into account a 65% reduction for contributory fault, the tribunal orders the 2nd named respondent to pay the claimant the sum of £5282.16, as set out in the tribunal’s conclusions.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Ms N Wright
Mr I Rosbotham
Appearances:
The claimant was present and represented himself.
The respondents were represented by Mr A Sands, Barrister-at-Law, instructed by John Ross and Son Solicitors.
THE CLAIM
1. The claimant claimed that he was unfairly dismissed by the second named respondent (“Mitie”), that he was entitled to a sum in respect of notice pay and/or a redundancy payment, together with a sum of £2,000 for breach of contract. The respondents denied the claimant’s allegations in their entirety.
THE ISSUES
2. The issues before the tribunal were as follows:-
(1) Whether the claimant was unfairly dismissed and is entitled to a sum in respect of notice pay and/or a redundancy payment;
(2) Whether the claimant is entitled to a sum of £2,000 for breach of contract.
SOURCES OF EVIDENCE
3. The tribunal heard evidence on behalf of the respondent from Lawrence Harper, General Manager of Mitie, and Jim Reynolds, Security Manager. The claimant also gave evidence. The tribunal was presented with a bundle of documentation and other relevant documentation in the course of the hearing.
4. During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – 2009 NICA 47.
In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-
[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”
RULINGS
5. (1) In the course of dealing with several case management issues on the first morning of the hearing, the respondents’ counsel raised the issue of a conflict of interest by claiming that one panel member was known to him as he (Mr Sands) had represented a respondent in proceedings in which the panel member was a self litigant. The tribunal arose to consider, inter-alia, this issue.
(2) The circumstances pertained to two cases brought by the panel member against a respondent represented by Mr Sands, in 2009/ 2010. A third case was withdrawn and Mr Sands did not appear at any Case Management Discussions in relation to this case. Mr Sands submitted that this situation amounted to a conflict of interest. The panel member however, did not see how this could be a conflict of interest. He was perfectly entitled to represent himself at hearings and Mr Sands was likewise entitled to be briefed on behalf of respondents. Furthermore, the panel member did not know anyone involved in the instant case and could not see how a conflict of interest could arise. The tribunal therefore unanimously refused the application for the panel member to stand aside on the above basis.
(3) Pursuant to the above ruling, Mr Sands indicated that he wished to make further submissions on the basis of apparent bias relating to the same panel member in the circumstances referred to above. Having considered the matter the tribunal ruled as follows:-
“Counsel for the respondent is inviting this tribunal to accede to an application of apparent bias against a panel member arising out of two contested cases brought by the panel member in 2009/10 in which Mr Sands represented the respondent and the panel member represented himself. A third claim had been withdrawn by the claimant in May 2013. Mr Sands indicated that he was involved in these proceedings but had apparently not been involved in any Case Management Discussions involving that particular case. He submitted that the two cases had been hotly contested, that they were emotive, and had lasted for several days. Mr Sands had cross-examined the panel member. It is accepted that the panel member does not know the claimant or respondent or any of the witnesses before this tribunal. Mr Sands, in subsequent submissions, specified five facts which the notional observer must be presumed to take into account:-
(i) He had represented a respondent in three cases involving the panel member, two of which were contested.
(ii) Both cases involved the panel member’s personal life and issues relating thereto as well as issues relating to his employment.
(iii) Mr Sands had cross-examined the panel member at length in both cases.
(iv) The claims were unsuccessful and some findings adverse to the panel member were made.
(v) The two contested cases were discrimination cases, involving sexual orientation, and victimisation claims.
Having considered the application, together with the authorities relied on and submissions from Mr Sands, the tribunal made the following ruling:-
(a) the question in this case is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Porter –v- Magill (2002) 2AC357);
(b) the tribunal has taken into account the section in Harvey on Industrial Relations at D1 paragraphs 906-924, insofar as relevant, and Girvan LJ’s judgment in the Northern Ireland Court of Appeal case of Suresh Deman –v- Association of University Teachers & Others (2009) NICA29, and specifically paragraphs 6 to 15 thereof. It has also considered the summary of authorities referred to by the President in the tribunal case of Colin McCann –v- Department for Employment & Learning (Case Reference: 07485/09).
The tribunal also refers to the Northern Ireland Court of Appeal case of William –v- Young 2007 NICA32, referred to at paragraph 10 of the Deman judgment, where the Court stated as follows:-
“The notional observer must therefore be presumed to have two characteristics, full knowledge of the material facts and fair-mindedness. Applying these qualities to his consideration of the issue, he must ask himself whether there was a real possibility that the decision maker was biased. In this context it is pertinent to recall Lord Steyn’s observation in Nawal –v- Northern Spirit Ltd (2003) UKHL35 quoting with approval Kirby J’s comment in Johnston –v- Johnston (2000) 201 CLR488 at 509 that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”
(c) In the tribunal’s view, an informed and fair minded observer, having considered the facts as presented by Mr Sands, would not conclude that there was a real possibility of bias, particularly in circumstances where he would also be presumed to be aware that the panel member concerned does not know any of the parties in this case, and the only nexus between the cases involving the panel member and the current case is Mr Sands himself. Mr Sands was simply performing his professional duties in the two contested cases, and in the third case which was eventually withdrawn in May 2013.
(d) The tribunal therefore unanimously refuses the recusal application. As in all other cases, the matter will proceed fairly, openly, and transparently before the full tribunal in accordance with the tribunal’s overriding objective, so as to achieve a just outcome.”
FINDINGS OF FACT
6. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i)
The claimant was employed by Mitie
from 10 December 2006 as a Security Guard until the effective date of
termination of his employment on
2 September 2013. He was dismissed for alleged gross misconduct, categorised
under the relevant policy as serious insubordination. It was agreed that the
claimant earned £222.84 gross per week and £212 net. Subject to liability (and
in this case, the tribunal’s own calculations) it was agreed by the parties
that any basic award would be £1,338 and that net loss for 47 weeks from 5
September 2013 until 27 July 2014 would be £6,656, taking into account
Jobseekers Allowance for that period of £3,308.82. The claimant is currently
employed at a higher level of pay until 31 January 2015 and at the date of the
hearing had not commenced looking for alternative jobs beyond that point. He
was therefore unsure as to whether he would secure further work beyond the end
of January 2015.
(ii) The tribunal was shown documentation signed by the claimant on 22 February 2012 pertaining to the transfer of an undertaking to Mitie. During his evidence, the claimant indicated that he was seeking a remedy from the tribunal in respect of Mitie’s alleged failure to provide him with a contract of employment. However, under TUPE, his pre-existing contract was the same contract under which he was employed by Mitie and, apart from the fact that he has not made any such claim in his claim form, the tribunal is satisfied that such a claim is without substance.
(iii) The claimant’s employment was terminated on 2 September 2013 in the following terms:-
“30th August 2013
Dear John
Termination of employment
Following the disciplinary meeting held on 14th August 2013 at Salca Pack Warrenpoint, I am writing to confirm the outcome.
The circumstances giving rise to this meeting were you were found to be aggressive and abusive towards your supervisor and our control room operative. We discussed the matter fully at the meeting and, having taken your explanations into account, and the sanctions available to me, I have concluded that the appropriate course of action is to summarily dismiss you, with immediate effect.
The reasons for your dismissal are:
Abusive language and behaviour towards a MITIE supervisor and control room operator.
Inappropriate comments [to] your supervisor relating to the company and management.
Failure to attend your scheduled working shift stating you would not be returning.
Time and attendance.
Leaving site without permission.
Your last day of employment will be 2nd September 2013.
You will be paid for any accrued but untaken holiday entitlement up until your last date of employment. If you have taken more holiday than you have so far accrued, the additional holiday will be deducted from your final payment.
I enclose a copy of the minutes of the disciplinary meeting for your records.
You have the right of appeal against the decision to terminate your employment. If you wish to appeal, you should do so in writing within 7 working days of the date of this letter to Jim Reynolds 9b silver wood business park silver wood road Craigavon BT66 6SY. Your written notice should state the grounds for your appeal and whether you are [appealing] against the action taken, or the facts of the situation.
Yours sincerely
Lawrence Harper
General Manager”
(iv) Mitie confirmed that the last in the list of reasons for the claimant’s dismissal was “an error”. Lawrence Harper, in his witness statement, referred to the fact that he had been made aware by Jonny Seaton that the claimant was on a final written warning for leaving the site early. Lawrence Harper confirmed that he did not see any documentation in relation to any such final written warning. Correspondence before the tribunal dated 28 August 2012 signed by Jonathan Seaton, Operations Manager, invited the claimant to an investigation meeting relating to this issue. The claimant in his evidence before the tribunal, strenuously resisted any suggestion that he had received a final written warning and there was no evidence produced to the tribunal to confirm that any such warning had ever existed. The tribunal is satisfied, however, that this supposed written warning was considered to some extent by Lawrence Harper when he dismissed the claimant, although Mitie’s case was that the episode referred to in the paragraph of the dismissal letter relating to reasons, was in itself sufficient to constitute serious insubordination and warranted summary dismissal for gross misconduct. It was acknowledged in Mr Sand’s final submissions that the above did represent defects in procedure as did the invitation to the disciplinary meeting, which failed to advise the claimant, in accordance with standard correspondence within Mitie’s procedures, that dismissal was a potential outcome. The claimant was however afforded an opportunity to be accompanied by a work colleague or trade union official at the disciplinary and appeal hearings but did not avail of the opportunity of doing so. The tribunal notes that the only specific allegation referred to in the correspondence of 9 August 2013 convening the disciplinary meeting was that:-
“You where verbally abusive and insubordinate [to] your supervisor and a control room operator”.
When the above is compared to the disciplinary outcome letter of 30 August 2013, referred to previously, it is clear to the tribunal that a number of additional matters were taken into account. The tribunal also found Lawrence Harper to be confused as to the appropriate applicable procedure at the material time and, following enquiries by the tribunal, further disciplinary procedures and policy documents were produced. The claimant did not receive a copy of the relevant disciplinary procedure. Mitie relied on the appeal rehearing conducted by Jim Reynolds as having the effect of curing any previous procedural defects.
(v) Jim Reynolds claimed that he did not take into account anything other than the events relating to the morning of 13 July 2013. Jonathan Seaton had been responsible for conducting the investigation into the incident which occurred on the morning of 13 July 2013 (and not 11 July 2013 as recorded in Jonathan Seaton’s note of a conversation with Martin Bevin). The typed written note states as follows:-
“Jonathan Seaton
Martin Bevin
JS: Martin please give me an account of the telephone conversation with John Cunningham on the 11th July 2013:
MB: MiTec called me and said that john had rang and was cursing at them and was quite abusive.
MB: He then rang me to say he would not be in for the foreseeable future. John then started getting noticeably upset started talking about a door being left open and [about] the client Raymond Watson. I was trying to calm him down as he was shouting at this point i said “im sure you wont do it again” at this point he began [screaming so loud] I had to hold the [phone] away from my ear. He continued to shout and scream Fuck you, Fuck Jonny Seaton, Fuck MITIE, this continued for a while and then he started going on about doors and windows being left open. The conversation finished when john stated “ill not be back fuck that place” and hung up.
JS: Thank you Martin”
(vi) The claimant made the case that Jonathan Seaton was implicated by reference in the incident and that he should not have been conducting the investigation. Mitie however asserted that he was the appropriate person to do so. The tribunal notes that Jonathan Seaton was also involved in the investigation leading up to the alleged final written warning. In his appeal against dismissal the claimant points out that he only ever received one warning from Mitie which was due to him leaving a new trainee on site for half a day alone. The tribunal has no reason to disbelieve the claimant on this point. Furthermore his letter of appeal asserts that he was not abusive on the morning of 13 July and that he did not know the supervisor, Martin Bevin, and had never met him. He admitted, however, to being loud and swearing but maintained that this was not aimed at Martin Bevin.
(vii) It appears that on the early morning of 13 July 2013, the claimant was suffering from ear and teeth problems. However he had also taken six cans of Carlsberg beer at his nephew’s house, and had been taking pain killers mixed with alcohol. He claimed to be under considerable stress and feeling depressed, and that this was the reason for taking the day off. He also pointed out in his letter of appeal that he became aggravated in the conversation with Martin Bevin because he (Martin Bevin) had said that Jonathan Seaton would not be pleased at him calling in sick. He claimed that he had been upset with Jonathan Seaton because he had had a few issues with him from the start. The tribunal also had the benefit of medical evidence from the claimant’s general practitioner Dr P McKinley dated 11 July 2014 relating to prescriptions for anti-depressants in 2013 and confirming that he had attended his surgery on 17 July 2013, complaining of painful ears. At that time he was noted to have impacted wax in both ears. The claimant relied on this ear problem as being the reason why he was shouting during the telephone conversations. The tribunal was also shown earlier medical evidence from Dr McKinley dated 12 March 2014, and dental records which included entries for 24 July 2013.
(viii) The claimant also made the case that, apart from Jonathan Seaton’s involvement in the investigation, there was no evidence that Martin Bevin had made the statement recorded in Jonathan Seaton’s note. The claimant clearly felt that the investigation was biased and, in cross examination asserted that Jonathan Seaton had told Lawrence Harper and Jim Reynolds that he (Seaton) had lied in relation to the final written warning. This evidence was not contradicted by the respondents.
(ix) The claimant attempted to contact Martin Bevin later the same morning in which the incident occurred and spoke to Tam King (Operational Support Supervisor). It was not disputed that Martin Bevin was off work for some three days after the incident occurred. The claimant phoned him upon his return to apologise for the incident. The claimant was subsequently suspended on 24 July 2013 following an investigatory meeting held by Jonathan Seaton.
(x) The tribunal considered the disciplinary and appeal stages as a whole together with the entirety of the evidence placed before Mitie at the disciplinary and appeal hearings and the factors taken into account at each stage. The tribunal is satisfied that the appeal outcome letter dated 7 October 2013 accurately reflects the thrust of the respective positions of the respondent and the claimant regarding the incident. Significantly, however, it does not specifically refer to the mitigating circumstances relied on by the claimant relating to stress, depression, health issues, the reason why he was shouting over the phone (due to his ear problems), and the pain he had with his teeth. In his evidence to the tribunal Jim Reynolds asserted that he did consider these mitigating factors but did not believe that they excused the claimant’s extreme behaviour on the telephone under any circumstances.
(xi) The appeal outcome letter states as follows:-
“7th October 2013
Dear John,
I refer to the appeal meeting in relation to the termination of your employment held on 2nd October 2012 at Warrenpoint. In attendance at the meeting was John Cunningham, Jim Reynolds and Kieran Moran (note taker). You had been afforded the opportunity of having a representative with you, which you declined.
You outlined the circumstances leading up to the Incident 13th July 2013. You stated that you were rostered to work at Salca Pack Warrenpoint on Saturday 13th July at 0700 hrs. On the previous Friday evening you had been drinking alcohol and as you were also taking painkillers you “were not in a good place”.
You telephoned MITec at around 1 am on 13th July to say you would not be attending work at 7am as rostered. You stated that you had no recollection of being rude or abusive to the MITec operator. Shortly after that you telephoned Martin Bevin, Security Supervisor. On your own admission you were “ranting and abusive” to Martin. You stated that you told Martin you didn’t know when you would be back to work.
From the statements made by the MITec operator you were extremely rude and abusive to him and used inappropriate and offensive language. Similarly, the statement of Martin Bevin states that you were extremely rude and abusive to him and used inappropriate and offensive language. You stated to him that you would not be back to work for the foreseeable future. You then started screaming down the phone making extremely disparaging remarks about Martin, Jonny Seaton and MITIE. You finished the conversation by screaming “I’ll not be back in that place” and hung up. You stated that the next morning you realised how you had behaved and you telephoned the office to apologise to Martin.
Having carefully considered all the circumstances I have concluded that your conduct on that day was totally unacceptable and amounted to gross misconduct on your part. I therefore uphold the decision to terminate your employment. Under MITIE’s disciplinary procedure there is no further appeal allowed.
Yours sincerely
Jim Reynolds
Security Operations Manager”
(xii) In relation to the claimant’s preferred remedy of reinstatement, the tribunal is satisfied that Mitie assesses its relationship with him as having broken down and in any event there are no vacancies at either Warrenpoint or Newry. Lawrence Harper also referred to the Mitie’s lack of trust in the claimant.
THE LAW
7. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:-
“127. – (1) for the purposes of this Part an employee is dismissed by the employer if … - (a) the contract under which he is employed as terminated by the employer (whether with or without notice).”
(ii) Article 156(2) of the Order provides as follows:-
“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) 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”.
(iii) The Order further provides at Article 157(6) as follows:-
“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”.
(iv) The law in relation to unfair dismissal in the context of misconduct is set out in Rogan as follows:-
“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.
“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it—
…. (b) relates to the conduct of the employee,
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.
[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-
(1) the starting point should always be the words of section 57(3) themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -
‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
At paragraph 26 of Rogan, Morgan LCJ states as follows:-
“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.
Again at paragraph 27 of his judgment, Morgan LCJ states:-
“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.
In paragraph 28 he continues:-
“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.
Girvan LJ in paragraph 7 of his judgement states as follows:-
“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”
Remedies
8. (i) Article 150 of the 1996 Order provides:-
“(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) whether the claimant 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 (of his 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 in 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 employee engaged the replacement it was not longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.”
(ii) The tribunal having ascertained the wishes of the claimant, then has to consider whether or not to make a reinstatement order as requested having also considered whether it is practicable for the respondent to comply with an order for reinstatement, and whether the claimant caused or contributed to some extent to the dismissal, as, if so, whether it would be just to order his reinstatement. The tribunal is aware that reinstatement or re-engagement has to be considered first in terms of remedy.
(iii) Article 147 of the 1996 Order provides as follows:-
“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”.
(iv) Article 146 of the 1996 order provides:-
“(2) The tribunal shall –
(a) explain to the complainant what orders may be made under Article 147 and in what circumstances they may be made, and
(b) ask him whether he wishes the tribunal to make such an order.
(3) If the complainant expresses such a wish the tribunal may make an order under Article 147.
(4) If no order is made under Article 147, the tribunal may make an award of compensation for unfair dismissal ... .”
(v) Article 148 of the 1996 Order provides as follows:-
“Order for reinstatement
148 – (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.
(2) An order for reinstatement the tribunal shall specify –
(a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement,
(b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and
(c) the date by which the order must be complied with.
(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so by for being dismissed.
(4) In calculating for the purposes of paragraph (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received and the date of reinstatement by way of –
(a) wages in lieu of notice or ex gratia payments paid by the employer, or
(b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.”
(vi) The tribunal considered the useful analysis of reinstatement as a remedy in the Industrial Tribunal case of Anthony McErlean v Northern Health and Social Care Trust (Ref 1268/13).
SUBMISSIONS
9. The tribunal carefully considered the helpful oral submissions made by Mr Sands and the claimant.
(i) Although acknowledging certain procedural defects relating to the last reason in the dismissal letter, that a final written warning could not be found, and the claimant had not been advised of the possibility of dismissal in the correspondence inviting him to a disciplinary hearing, Mr Sands urged the tribunal to find that the threefold test set out in the case of Burchell had been satisfied. He referred the tribunal to Harvey on Industrial Relations and Employment Law (“Harvey”) at D1 (1501.04) as follows:-
“In the case Alexander v Brigden Enterprises Limited (2006) IRLR 422, the EAT held that the employer had to be given “sufficient detail of the case against him to enable him properly to put his side of the story”.
He also referred to paragraph (1528) of Harvey which states:-
“Finally, note a potentially important procedural aspect of holding a fair appeal. Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of a procedure are sufficient to cure any earlier unfairness, according to the decision of the Court of Appeal in Taylor v OCS Group Lt (2006) EWCA Civ 702, (2006) IRLR 316. In that case it was stated that ultimately a tribunal must look at the overall fairness of the procedure, in particular the “thorough-ness and the open-mindedness of the decision-maker” and not just consider whether the appeal had taken the form of a re-hearing rather than a review as had been the earlier received wisdom following decision of the EAD in Whitbread and Co plc v Mills (1988) IRLR 501, (1988) ICR 776”.
(ii) Referring to the appeal hearing, Mr Sands submitted that Jim Reynolds based his decision on the incident of 13 July 2013 and did not consider any written warning. He submitted that the claimant’s conduct was properly categorised as serious insubordination and that the respondent’s evidence was preferable as against the claimant’s assertions that Jim Reynolds, Lawrence Harper, Martin Bevin and others were all to a lesser or greater extent telling untruths. He contended that it was insubordination for the claimant to state that he would not be back. He submitted that the overall procedure was fair under the principles in Taylor.
(iii) Should the tribunal have to consider remedy, Mr Sands submitted that it was not appropriate to order reinstatement or re-engagement and that in any event the claimant had caused or contributed to his own dismissal. In this respect he referred to Harvey at D1 (278). If the tribunal were to order compensation, counsel urged a reduction in both the basic and compensatory amounts and pointed out that the conduct of the claimant was extremely reprehensible and would substantiate a total reduction. He further contended that any compensatory award should not extend beyond 47 weeks and, if the claimant were to lose his job in 2015, that this was too remote from the original dismissal.
(iv) The claimant, in his submissions, focussed on Jonathan Seaton’s role in the investigation and reiterated that he had never received any written warnings. He submitted that Jonathan Seaton, Lawrence Harper, and Jim Reynolds had failed to take into account mitigating factors. He submitted that the only evidence of the conversation on 13 July 2013 with Martin Bevin was his (the claimant’s) own evidence and the Seaton/Bevin statement. He believed that any reasonable employer would have accepted his apology and that he would have been able to return to work on a first or final written warning. He submitted that a similar episode was unlikely ever to happen again. He referred to the admission that he had sworn but had felt antagonised and believed that Martin Bevin spoke inappropriately to him. He referred to Mitie failing to follow its own procedures and referred to the fact that he had never been told of the possible outcomes of any disciplinary or investigation meetings. The claimant also submitted that Mitie had failed to conduct an adequate investigation into the alleged abuse of the control room operator. He submitted that the control room operator should have been interviewed when he (the claimant) denied being abusive. He submitted that the investigation was biased, that he was not aware of Mitie’s rules and procedures, and did not believe that he should have been charged with gross misconduct. He stated that he would “like to believe” if he returned to Mitie that he would have the maturity to put the incident behind him and requested the tribunal to order reinstatement or to compensate him accordingly.
CONCLUSIONS
10. (1) The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact concludes as follows:-
(i) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-
(1) Was the dismissal of the claimant by the respondent fair in all the circumstances? In determining this primary issue the Tribunal should consider the following:
(a) Has the respondent shown that the reason relied (or principal reason) relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?
(b) Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?
(i) Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?
(ii) At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?
(c) Was the dismissal a fair sanction in the circumstances?
(d) Was the claimant afforded an effective right of appeal in the circumstances?
(2) The tribunal answers questions (a), (b)(i), and (d), in the affirmative. However the tribunal is not satisfied that at the stage the respondent took the decision to dismiss it had carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances. In light of the background involving an entirely unsubstantiated final written warning, and Jonathan Seaton’s involvement therein, the tribunal is not satisfied that he was an appropriate person to conduct an investigation and in any event, is satisfied that it would have been appropriate for any investigator to have obtained a statement from Martin Bevin which the claimant could have challenged, as necessary. 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 (Sainsburys Supermarkets Ltd v Hitt (2003) IRLR 23 CA).
(3) The fact that reasons for his summary dismissal were proffered in the disciplinary outcome letter, additional to the specific charge in the correspondence convening the disciplinary meeting, and the fact that the claimant was not advised of the possibility of dismissal, combine to illustrate a mindset towards the claimant leading to his dismissal. The tribunal is satisfied that Jonathan Seaton and Lawrence Harper had the spurious final written warning in their minds during the investigation and at the point of deciding that the claimant should be dismissed for gross misconduct respectively. The appeal hearing, which was conducted as a rehearing, could not, in the tribunal’s view, remedy an inadequate investigation into the matter. Moreover it did not adequately consider the mitigating circumstances and, in that context, thoroughly weigh the points of disagreement which the claimant raised with the Seaton/Bevin statement in his letter of appeal, in arriving at its decision to uphold the sanction of dismissal on the one ground specified in the correspondence convening the disciplinary meeting.
(4) The tribunal is therefore satisfied that the decision to dismiss the claimant was not within the band of reasonable responses which a reasonable employer might have adopted in the particular circumstances of the present case.
(5) The tribunal also concludes on its findings of fact at paragraph 6(xii) and in (6) below that neither reinstatement nor re-engagement is an appropriate remedy.
(6) The tribunal is satisfied that the claimant, in the manner in which he conducted himself on 13 July 2013, as confirmed by his subsequent apology, contributed substantially towards his own dismissal and that there should be a 65% reduction in the compensatory award to reflect this (for the period of 41 weeks to take account of the 6 weeks’ notice pay) by virtue of Article 157(6) of the Order. Moreover the tribunal is satisfied that a similar reduction should be made in respect of a basic award by virtue of Article 156(2) of the Order.
(7) Calculations before Deductions
Basic Award £222.84 x 6 = £1,337.04
Compensatory Award
Loss of Salary £47 x 212 (to include £1,272 for
6 weeks’ notice pay) = £9,964.00
The tribunal does not consider it just and equitable to award an amount for further future loss.
Total Basic and Compensatory award = £11,301.04
Calculation After Deductions
Basic Award £1,337.04 less 65% = £ 467.96
Total compensatory award 41 x £212 = £ 3,042.20
(to take account of 6 weeks’ notice pay)
less 65%
Add loss of statutory rights = £ 500.00
TOTAL MONETARY AWARD: (to include £1,272
notice pay) to be paid by Mitie subject to
(8) below = £ 5,282.16
(8) By virtue of the Employment Protection (Recoupment of JobSeekers Allowance and Income Support) Regulations (Northern Ireland) 1996, the award is subjected to recoupment of Jobseekers Allowance from 9 September 2013 until 26 July 2014. This amounts to £3,308.52.
(9) The attached recoupment notice forms part of the decision of the tribunal.
(10) There is no evidence before the tribunal that the claimant’s claims for £2,000.00 in relation to breach of contract and for a redundancy payment have any merit, and they are therefore dismissed.
11. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 6 October and 11 November 2014, Belfast.
Date decision recorded in register and issued to parties: