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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sheil v Stena Line Irish Sea Ferries L... [2015] NIIT 434_13IT (09 April 2015)
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THE INDUSTRIAL TRIBUNALS
CASE REF: 434/13
CLAIMANT: Martin Sheil
RESPONDENT: Stena Line Irish Sea Ferries Ltd
DECISION
The unanimous decision of the tribunal is that the unfair dismissal claim is dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr J Barbour
Ms T Hughes
Appearances:
The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Crawford’s, Solicitors.
History of litigation
1. The claimant had been employed by the respondent as a driver. He was dismissed on 12 December 2012 for gross misconduct following an incident on 2 November 2012 which involved an alleged assault on a fellow employee.
2. The claimant originally claimed unfair dismissal, discrimination, victimisation and harassment on grounds of sexual orientation, and trade union detriment.
3. The original tribunal sat in Belfast between 7 – 11 October 2013. It upheld the claims of unfair dismissal and unlawful harassment on the grounds of sexual orientation. It dismissed the claims of unlawful trade union detriment, and of discrimination and victimisation on the grounds of sexual orientation.
4. The original tribunal awarded compensation of £37,513.32 in respect of unfair dismissal and £7,500.00 in respect of unlawful harassment on the grounds of sexual orientation.
5. The respondent appealed against the finding of unfair dismissal.
6. The Court of Appeal allowed the appeal and remitted the unfair dismissal part of the original claim to be re-heard by a differently constituted tribunal.
7. The differently constituted tribunal heard this claim from 2 – 4 March 2015. While both parties indicated at an earlier Case Management Discussion that the tribunal should read both the original tribunal decision and the Court of Appeal decision, and the tribunal did so, the tribunal has been conscious that it has to approach this matter as if it were hearing the unfair dismissal claim afresh and that it should not be bound or in any way influenced by previous findings of fact in relation to the unfair dismissal claim.
The hearing
8. The witness statement procedure was used. Apart from brief oral evidence-in-chief solely for the purpose of necessary clarification of points in the witness statements, each witness in turn swore or affirmed to tell the truth, adopted their previously exchanged witness statement as their evidence and proceeded to cross-examination and re-examination. Since this was solely an unfair dismissal claim for the purposes of this hearing, the respondent went first and the tribunal heard evidence from the following witnesses from the respondent:-
(i) Brian English (the witness to the incident on 2 November 2012)
(ii) William Gilmore (the other party involved in the incident on 2 November 2012)
(iii) Thomas Gourley (foreman at the docks was called to give evidence orally)
(iv) Robert Spruth (who conducted the investigatory hearing on behalf of the respondent)
(v) Paul McConnell (who gave evidence of a conversation in the Point Bar with the claimant)
(vi) Karen Burgess (Human Resources Officer)
(vii) Nicola Barlow (HR Manager)
(viii) Diane Poole OBE (who conducted the grievance hearing)
(ix) David Adlington (who conducted the disciplinary hearing on behalf of the respondent)
(x) Howard Hillis who heard the internal appeal
9. The claimant gave evidence on his own behalf and did not call any other witnesses.
Relevant law
Tribunal procedure
10. Tribunals must approach with particular care any claim of unfair dismissal, where there may be an issue of contributory conduct or a possibility of a Polkey deduction.
In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-
“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”
Unfair dismissal
11. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
12. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-
“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 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.”
13. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-
“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) –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 [equivalent GB legislation] is as follows:-
(1) the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another;
(5) the function of an 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 Home 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, it 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.”
14. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-
“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET 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.”
He continued at Paragraph 19:-
“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”
15. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-
“In brief the council’s case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”
At Paragraph 38 of the decision, he continued:-
“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”
16. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-
“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”
“In A v B the EAT 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 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 enquiry 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.”
17. In the Court of Appeal decision in the present case the Court discussed the relevant law which applied where an individual who had had some involvement in the matter then took part at a later stage in the disciplinary process:-
“[34] The question as to whether involvement of a person at an early stage in the process of investigation/discipline would have the effect of excluding him or her from subsequent conduct of an appeal depends essentially upon fact and context. In Rowe v Radio Rentals Ltd [1982] IRLR 177 the claimant’s immediate superior, the area manager, decided that he would have to be dismissed for breach of company rules. The area manager reported his decision to the regional controller who said that because a trade union representative was involved the claimant should be suspended until the Union was informed. The subsequent appeal was heard by the Regional Controller to whom the area manager outlined the facts. In delivering the judgment of the Employment Appeal Tribunal Browne-Wilkinson J made the following observations at paragraph 13:
‘There may be some exceptional cases (which we cannot now think of) in which the rule that justice must appear to be done might apply to the full extent that it applies to a judicial hearing. But, in general, it is inevitable that those involved in the original dismissal must be in daily contact with their superiors who will be responsible for deciding the appeal: therefore, the appearance of total disconnection between the two cannot be achieved. Moreover, at the so-called appeal hearing (which in this and many other cases is of a very informal nature) the initial dismissor is very often required to give information as to the facts to the person hearing the appeal. It is therefore obvious that rules about total separation of functions and lack of contact between the appellate court and those involved in the original decision simply cannot be applied in the majority of cases. It seems to us that the correct approach is that indicated by Lord Denning in Ward v Bradford Corporation [1971] 70 LGR 27 at page 35:
‘We must not force these disciplinary bodies to become entrammeled in the nets of legal procedure. So long as they act fairly and justly, their decision should be supported.’
[35] In Byrne v BOC Ltd [1992] IRLR 505 the claimant was alleged to have claimed excessive overtime. The Pensions Manager, Mr Pegg, directed that further investigations should be carried out and, when they had been completed, Mr Pegg subsequently carried out his own checks of the documentation and arrived at a more substantial overclaim than had been produced by the initial calculation. Mr Pegg then took part in a consultation with a member of the personnel department and the employee relations manager for the purpose of considering the appropriate disciplinary sanction. Acting on the basis that the sanction would be that of instant dismissal Mr Pegg then directed a disciplinary hearing should be held immediately. The dismissal of the claimant was confirmed by the disciplinary hearing and Mr Pegg conducted the subsequent appeal. In delivering its decision the EAT recorded at paragraph 23 that:
‘In the present case Mr Pegg was undoubtedly far more heavily involved in the investigation and preparation of disciplinary proceedings than was Mr West in Rowe v Radio Rentals [1982] IRLR 177. Mr Pegg himself verified the critical documentary material, that is to say the weekly time sheets and monthly overtime claims form completed by Mrs Byrne, and he came to a somewhat different conclusion regarding the amount of the excess claims made by Mrs Byrne than had Mr Platter who did the original investigation. Moreover, it was Mr Pegg’s calculation rather than Mr Platter’s that was adopted by Mr Pratt when he put the charges to Mrs Byrne. It is impossible to avoid the conclusion that Mr Pegg personally played a significant part in investigating the charge against Mrs Byrne. Secondly, Mr Pegg was personally involved, together with Mr Pratt, in consulting the personnel department of BOC to find out what the appropriate procedure and penalty would be’.
[36] In the event, the majority in the EAT consisting of the lay members decided that, on the basis of the evidence, the conclusion that Mr Pegg was in reality a judge in his own cause was ‘inescapable’.
[37] According to the Tribunal’s findings the involvement of Mr Hillis in the preliminary matters was significantly less than either than of Mr Rowe or Mr Pegg. Mr Hillis had been informed by the foreman of the alleged assault and an independent witness had confirmed what had taken place. It was in such circumstances that Mr Hillis had ‘advised’ Mr Gilmore to make a complaint and to inform him that the evidence of the third party made some form of investigation inevitable. On the facts recited in the Tribunal’s decision it is rather difficult to understand the basis upon which ‘advised’ eventually became ‘strongly encouraged’. On the other hand, the Tribunal does not appear to have made any reference to the fact that Mr Gilmore appears to have attended Mr Hillis in his private office on 5 November 2012 and apparently expressed some concerns about the respondent’s alleged paramilitary connections. There is no reference to Mr Hillis directing photographs to be taken of Mr Gilmore’s injuries. Despite giving Mr Hillis credit for conducting interviews with the witnesses relating to the pre-assault homophobic comments, the Tribunal does not appear to refer to the fact that such interviews took place was not drawn to the attention of the respondent nor were the witnesses’ statements disclosed to him or his representatives.”
Credibility
18. It is important for the tribunal to remember the limits of its proper jurisdiction when considering a claim of unfair dismissal. At the first stage, the task of the tribunal is to determine the reason for the dismissal and then whether the dismissal was fair or unfair for the purposes of the 1996 Order. In doing so, it is not part of the tribunal’s function to determine at that first stage whether or not the alleged misconduct actually took place. It has to determine, at that stage, whether the dismissal was procedurally and substantively fair; it may not proceed to determine, at that stage, whether the alleged misconduct; in this case, the alleged assault on 2 November 2012, actually took place.
It is only where a tribunal has determined that a dismissal was unfair for the purposes of the 1996 Order, that the tribunal may have to reach its own conclusions, as decisions of fact, on the alleged misconduct in order to assess contributory fault or Polkey deductions, when assessing remedy.
19. The issue of credibility therefore is an issue which covers both stages, ie covers both the initial stage of determining whether or not a dismissal was fair or unfair for the purposes of the 1996 Order and also the second issue, if it proves necessary, of assessing remedy. While the tribunal must be careful not to allow the first and second stages to be confused at any stage, the issue of credibility is important in assessing both stages. Furthermore, the Court of Appeal, in the present case, has stated at Paragraph (44):-
“ ... in any event, the question of whether or not and, if so, to what extent and/or with what effect the respondent (the claimant) was subjected to homophobic comments is likely to remain a live issue.”
20. That said, the tribunal was not impressed with the credibility of the claimant when giving evidence or indeed that of Mr William Gilmore, the alleged victim of the assault.
21. In relation to the credibility of the claimant:-
(i) The claimant had been a shop steward for some four years. He had attended courses on employee relations which he described in evidence as ‘basic’. He alleged that he had suffered significant homophobic abuse for a lengthy period of time without raising a complaint or a grievance and without seeking the assistance of his trade union or of anyone in management. The tribunal concludes that this was unlikely. Remarks about his sexual orientation had clearly been made on 1 November 2012 and, before that, ‘banter’ had been commonplace. However if this had been as hurtful and as sustained as the claimant alleges, he would have made a complaint. The claimant’s explanation in cross-examination was that he did not want to ‘out’ himself and was therefore reluctant to make a complaint. This does not ring true. The claimant’s case was that the homophobic banter was commonplace and that it occurred in front of his work colleagues. The claimant had not spoken directly to Mr Gilmore for a long time. A complaint or grievance, particularly if it was resolved informally, would not have particularly increased the public nature of the alleged homophobic abuse. In any event, a complaint to a manager or to his trade union would not have required that he ‘outed’ himself by disclosing or by discussing his sexual orientation. He could simply have complained of the remarks as above. He did not need to go further. The tribunal notes that the alleged pattern of homophobic abuse was first mentioned by the claimant at the disciplinary hearing on 29 November 2012 It was not mentioned at all at the investigation meeting on 15 November 2012 or even in the claimant’s letter of grievance dated 16 November 2012. If such a pattern of homophobic abuse had in fact occurred as described and if it had indeed been the issue which had led to the ‘incident’ on 2 November 2012, that pattern of abuse would have been the subject of a detailed complaint or grievance by the claimant long before 29 November 2012. At the very least, it would have been mentioned straight away during the investigation meeting, the grievance letter or at the start of the disciplinary hearing. It was not mentioned at those times and therefore the claimant’s evidence on this point does not seem credible.
(ii) The claimant alleged in his witness statement to the tribunal that Mr William Gilmore had made ‘various indirect remarks about my personal life and sexual orientation’ during the ‘last year or so’. In a disciplinary hearing on 29 November 2012, he described this alleged behaviour as being ‘over several weeks’. In the appeal hearing he referred to ‘18 months’. There is a big difference between ‘a year or so’, ‘several weeks’ and ’18 months’. The claimant’s account is not consistent and again does not appear credible. While a remark or remarks had been made in the works minibus on 1 November 2012, and it seems clear that ‘banter’ was commonplace, no evidence of any sustained pattern of homophobic abuse over any of the alleged periods was put forward by the claimant during the disciplinary process. Mr Hillis, in the appeal hearing, had specifically sought such evidence. The claimant declined to assist other than to refer Mr Hillis to the details given to Mr Adlington of the one incident on 1 November 2012.
(iii) The claimant repeatedly referred to himself as an elected shop steward. That assertion appeared again in the claimant’s witness statement which formed his evidence-in-chief in this matter. The claimant accepted, in cross-examination, that he had not in fact been elected; he had been co-opted when a friend resigned his post and the union in question was not a recognised trade union for the purposes of negotiation or consultation. The claimant knew that he had not been elected. However, he persisted in putting this forward in an obvious attempt to enhance his status. Again his evidence on this point does not appear credible.
(iv) The claimant’s attitude during the investigation meeting and indeed during the first part of the disciplinary meeting was disruptive and unco-operative. At the tribunal hearing, he sought to put the blame for this on his trade union representative; at that time, Mr Cunningham. However it is perfectly plain, on the claimant’s own evidence, that the claimant was an experienced trade union member and a co-opted shop steward at that point. He was not the sort of individual who would have been cowed into submission by either Mr Cunningham, Mr Spruth or Mr Adlington. The tribunal therefore concludes that his attempt to put the blame for this behaviour on Mr Cunningham was self-serving and again less than credible.
(v) In his grievance of 16 November 2012 and in his grievance meeting of 6 December 2012, and indeed in his witness statement to the tribunal, the claimant complained that Mr Spruth had said during the investigation meeting that he had been investigating ‘an incident’. It was not in dispute at any stage, and on any version of events, that there had been ‘an incident’ on 2 November 2012. Mr Spruth’s reported reference to an ‘incident’ therefore appears entirely unremarkable and non-contentious. In the internal appeal hearing before Mr Hillis, the claimant stated:-
“He (Mr Spruth) said ‘I’m here to ask questions about the assault’ rather than alleged assault.”
In cross-examination, before this tribunal, the claimant referred back to his complaints in his grievance that Mr Spruth had, in making that remark, indicated pre-judgment. He asserted in evidence at one point that Mr Spruth had said he was investigating ‘an assault’ rather than ‘an incident’. This statement was only a few moments after he had asserted in cross-examination that Mr Spruth had simply referred to ‘an incident’. Again the claimant’s evidence appears inconsistent and less than credible. It seems plain that the claimant has attempted sporadically to inflate an anodyne reference to ‘an incident’ to a reference to ‘an assault’, which might have indicated pre-judgment.
(vi) Furthermore, the claimant alleged to the tribunal that there had been a conspiracy to dismiss him although he accepted he had no evidence to support the allegation, and had no clear idea of who was involved in the conspiracy and at what stage the conspiracy took place. The ability to put forward vague and unsupported allegations does bring his credibility into further doubt.
(vii) The claimant, in his statement to the tribunal, alleged that the incident on 2 November 2012 lasted for a maximum of 15 seconds. On any version of events, the incident involved the claimant stopping his vehicle beside Mr Gilmore’s vehicle, speaking to Mr Gilmore, receiving no satisfactory response from Mr Gilmore, leaving his cab in his own vehicle, crossing over to Mr Gilmore’s vehicle, climbing onto Mr Gilmore’s vehicle and entering Mr Gilmore’s cab, speaking to Mr Gilmore, being observed by Mr Brian English, Mr Brian English deciding to stop his own vehicle, Mr Brian English leaving his own vehicle, climbing into Mr Gilmore’s vehicle, entering Mr Gilmore’s cab and pulling the claimant and Mr Gilmore apart. That was clearly an incident which on any version of events had to have lasted significantly longer than 15 seconds. The claimant’s version of events again seems self-serving in an attempt to minimise the significance of the incident and does not appear in the least credible.
(viii) The claimant is considerably younger than Mr Gilmore and he had served in the armed forces for 17 years. The claimant’s version of events; that Mr Gilmore had in fact assaulted him by pulling him into the cab is simply not credible. If it had indeed been true it is, in any event, difficult to understand why the claimant did not report it at that time and did not in fact put it forward as an explanation for the ‘incident’ until the second part of the disciplinary hearing.
22. As far as the credibility of Mr Gilmore is concerned:-
(i) Mr Gilmore gave a graphic account of an alleged assault by the claimant. He described being continuously punched by the claimant who was standing above him, partly inside and partly outside his cab. Photographs of the injuries to the claimant do not appear consistent with such a sustained beating. There were some marks on his face which appear to be consistent with his safety glasses being pressed into his face, perhaps by being pushed against the side of his cab. However, there was no apparent bruising, swelling or black eyes. If Mr Gilmore’s arms had been raised above his head and had blocked these blows as he claimed there would have been photographs taken of what would have had to have been some bruising or perhaps some significant bruising to his arms. No such photographs were produced. There was no medical evidence of injuries to his arms which appears remarkable given that his evidence was that his right shoulder had already been injured. No medical evidence was produced of any treatment following this sustained beating.
(ii) It is also notable that, when asked by Mr Spruth on 8 November 2012 whether the claimant had struck him in any way, Mr Gilbert said “couldn’t possibly say’ and ‘he pushed me very forcefully’. His explanation for this inconsistency was that he did not want to get the claimant into trouble. If he had just been repeatedly punched by a colleague who then allegedly said ‘this is not finished’, this degree of charitable concern seems unlikely. This alleged concern at the time for the claimant did not, in any event, prevent him from reporting the incident to his employer. That was a matter of personal choice; he had not been directed to report it. It also did not prevent him from saying of the claimant, ‘if Brian had not been there I was at his mercy’. His evidence in this regard does not appear to be credible.
23. As far as Mr English’s credibility is concerned, the view of Mr English of the incident appears to have been restricted in the initial phase of the incident when he was in his own cab and when he was crossing over to Mr Gilmore’s cab. However, after observing Mr English give evidence and being cross-examined, the tribunal has concluded that he initially believed that he had witnessed an assault by the claimant on Mr Gilmore. He formed a view of what he had seen or what he believed he had seen. He was reluctant thereafter to admit any possibility that his interpretation of events had been mistaken. He appeared more interested in sustaining his initial impression than in calmly considering what he had actually seen.
Relevant findings of fact
24. As indicated above, not all these findings of fact are relevant to the first stage. While the Court of Appeal in Small (see above) recommended separate findings of fact, this could be a difficult exercise in this case and it is better, in the view of the tribunal to, firstly, reach a series of findings of fact on all potentially relevant issues to assist in determining credibility and then to distinguish the findings of fact relevant to each relevant stage of the decision-making process.
25. The claimant and Mr Gilmore were both driving tugs on the top deck of a ship on 2 November 2012. They were both employees of the respondent company.
26. Mr Gilmore did smile or laugh on at least one occasion at the claimant. It does not appear to matter, for the purposes of the present case, whether Mr Gilmore was smiling because of the claimant’s driving abilities or because of remarks made in the work’s minibus on the previous day.
27. The claimant drove his tug beside the tug driven by Mr Gilmore and attempted to remonstrate with him. The claimant stated in evidence before the tribunal that in doing so he was simply attempting to implement the first part of the grievance procedure; ie attempting to resolve a grievance issue informally in accordance with the respondent’s procedure. Having observed the claimant give evidence and in view of the concerns noted above about the claimant’s credibility, the tribunal concludes that this version of events and this reliance on the grievance procedure is again self-serving and simply not credible. The claimant accepted in the disciplinary hearing that he had been ‘annoyed’ and that he had probably sworn at Mr Gilmore. The claimant also accepted that he had pointed at him. However, the claimant denied in evidence to the tribunal that he had been annoyed at this stage. The tribunal concludes that this later assertion was incorrect. It contradicts what he said at the disciplinary hearing. The tribunal therefore concludes the claimant had been annoyed and that he had reacted aggressively to what he saw as mockery by Mr Gilmore.
28. The claimant then exited his own cab and crossed over to Mr Gilmore’s vehicle. He climbed up the steps at the side of that vehicle and continued the confrontation in Mr Gilmore’s cab. The claimant accepted in his witness statement that he and Mr Gilmore had become entangled. He claimed that Mr Gilmore had grabbed him by the collar and had pulled him down towards him. Mr Gilmore and Mr English maintained that there had been a sustained episode of punching by the claimant. Giving the concerns about the credibility of the claimant, Mr Gilmore and Mr English, as set out above, the tribunal concludes, on the balance of probabilities, that there had been some form of assault involving pushing and shoving more than sustained punching. That is consistent with Mr Gilmore’s initial statement to Mr Spruth. It is also consistent with the contemporaneous photographs of Mr Gilmore’s facial injuries. The truth of the matter, therefore, appears to lie somewhere between the version put forward by the claimant and that put forward by Mr Gilmore and Mr English.
29. Mr English intervened and pulled the two men apart. The claimant left.
30. Mr English reported the incident to a foreman, Mr Ian Gourley. Mr Gourley telephoned Mr Howard Hillis, the port operations manager and told him of the alleged incident. He also told Mr Hillis that Mr Gilmore was reluctant to take the matter any further.
31. Mr Hillis telephoned Mr Gilmore and told him to attend his office on his next working day, ie 5 November 2012. He advised Mr Gilmore that he should report the matter immediately in writing to the respondent company and that he should also consider reporting the matter to the police. Mr Hillis made it plain that he would be, in any event, investigating the incident even if no written or other complaint were to be received from Mr Gilmore. He arranged for photographs to be taken of the claimant’s injuries. Given that a senior manager had received a report of an alleged assault in the workplace, it is entirely unremarkable that that senior manager had said what he had said to Mr Gilmore. If Mr Hillis had decided to ignore the oral report from Mr Gourley of an alleged assault and if there had been a further incident, Mr Hillis would have been open to substantial criticism. He had a duty of care to his employees which meant that he could not ignore an alleged assault without at least advising an internal complaint and without further investigation. The taking of photographs seems to this tribunal to have been a routine management action where an assault had been alleged. It did not indicate pre-judgement.
32. The tribunal is satisfied that Mr Hillis did not make his mind up at this stage. His view at that point was that there had been a report of an alleged assault. It was for the alleged victim to make a written complaint. Mr Hillis had made it plain that the matter would then be dealt with properly regardless of any complaint.
33. Later on 5 November 2012, Mr Gilmore returned to Mr Hillis’ office and handed Mr Hillis a letter stating that he was now reporting an alleged assault. He could have chosen not to report the matter. He could have decided to simply wait for the investigation conducted by Mr Hillis and to respond at that point. Mr Hillis handed the letter to the HR Department and that was the limit of his involvement at that point.
34. Nicola Barlow, the HR Manager, received the written complaint. She did not receive any parallel complaint from the claimant. Therefore at that point in time she had only one complaint and only one alleged version of events. She had no allegation from the claimant that Mr Gilmore had in any way assaulted the claimant or had in any way provoked the alleged assault on him by the claimant. That version of events did not emerge until much later; at the second part of the disciplinary hearing. She decided to suspend the claimant on full pay pending an investigation into the complaint. That suspension was confirmed orally by Mr Robert Spruth on 6 November 2012 and then confirmed in writing. Given the facts before the respondent at that point, the suspension appears entirely reasonable.
35. On 8 November 2012 the claimant was invited to attend an investigatory meeting. That meeting was re-scheduled to 15 November 2012. The meeting was conducted by Mr Spruth and a Ms Karen Burgess attended on behalf of the respondent to take minutes.
36. The claimant was accompanied by Mr Cunningham, a Unite representative. The conduct of the claimant and Mr Cunningham was unco-operative and confrontational. The claimant then refused to address the alleged assault and took refuge in procedural matters. The claimant raised a grievance against Mr Spruth and Ms Burgess.
37. The meeting was adjourned and the claimant was told that the company would be in contact with him.
38. Mr Spruth also met with Mr Gilmore and Mr English on 8 November 2012. Mr Gilmore stated that the claimant had pulled up in front of this tug and had said ‘I’m going to knock that fucking smirk off your face’. Mr Gilmore also stated that the claimant had got onto his tug and ‘was coming at me’. He stated that he was wedged between the seat and the side of the wall of his tug at this point. He said he could not say that the claimant had struck him. He said ‘he pushed me very forcefully’. Mr English had then pulled the claimant off him.
Mr English said he had heard the claimant shouting and had seen the two tugs touching. He had observed the claimant in Mr Gilmore’s cab on top of Mr Gilmore. He stated that he was punching him. He got onto Mr Gilmore’s cab and separated them.
39. Much was made at the tribunal hearing of the statement made at the end of the claimant’s investigation meeting that the matter had been adjourned. Having looked at the papers and having heard the evidence of Mr Spruth, the tribunal can see nothing wrong in this statement. The claimant and his representative had been given a full opportunity to address the allegation and the claimant knew exactly what that allegation was. He chose not to address the matter and it was apparent to Mr Spruth that nothing would be gained by a further investigation meeting with the claimant. On the basis of the statements from Mr English and Mr Gilmore, Mr Spruth recommended a disciplinary hearing. That was not a determination of guilt; it was simply a conclusion that the matter should move forward to the next stage in the procedure at which the claimant would again have an opportunity to put forward his side of the case. It seems to the tribunal that this recommendation was entirely reasonable, and indeed inevitable, given the evidence before the respondent at that stage. There is no merit in an argument that the disciplinary process could not proceed unless the grievance had been determined. That grievance did not directly bear on the alleged assault. It did not need to be determined before the employer could safely hear both sides of the argument and could determine the alleged misconduct charge.
40. The claimant was advised that his grievance would be dealt at a grievance meeting on 6 December 2012. The claimant was invited to a disciplinary meeting on 29 November 2012.
41. At the disciplinary meeting the claimant was again represented by Mr Cunningham. The hearing was conducted by Mr Adlington and Ms Burgess again attended to take minutes. Mr Cunningham’s conduct in the first part of this meeting was again one of non-co-operation and confrontation. After a recess, the meeting reconvened and Mr Cunningham made it plain that the claimant wished to address the allegation of misconduct but that he was doing so against Mr Cunningham’s advice.
42. The claimant stated that Mr Gilmore had made derogatory remarks about him on the previous day, ie 1 November 2012, and that this had been going on over several weeks. He gave the names of three additional persons who had been in the minibus on 1 November 2012 when alleged remarks had been made. He alleged that on 2 November 2012 Mr Gilmore had been laughing and smirking for between 15 – 20 minutes. He had pulled alongside him and Mr Gilmore had called him a ‘fucking fruit’. He had got out of his own tug and gone onto Mr Gilmore’s tug and Mr Gilmore had pulled him on top of him. He stated that he had been ‘annoyed’; he probably swore at Mr Gilmore and Mr Gilmore had sworn back at him. He denied hitting Mr Gilmore. He denied using any force against Mr Gilmore and stated he was not able to do so because he was entangled with Mr Gilmore.
43. On 3 December 2012, Mr Adlington met Mr Gilmore at a further disciplinary meeting. Mr Gilmore accepted that he had laughed at the claimant on 2 November 2012 but stated that he had been laughing at the claimant’s driving prompted by remarks made by a checker. Mr Gilmore denied getting hold of the claimant’s jacket and pulling him towards him. He stated that the claimant had been ‘raining blows’ on him as he was stuck between the driver’s seat and the side of the tug. Mr Adlington had a further meeting with Mr English also on 3 December 2012. Mr English confirmed his statement and insisted that the claimant had been hitting Mr Gilmore with both hands.
44. Mr Adlington did not meet or take statements from the three other individuals named by the claimant as being in the minibus on the preceding days. His conclusion was that those statements would not have added anything to the determination of the alleged assault complaint on 2 November 2012.
45. The tribunal concludes that it would have been better if Mr Adlington had taken those statements because it would have provided a more complete picture of the events leading up to the alleged assault. However, none of those three named individuals had been put forward as witnesses to the alleged assault on 2 November 2012.
46. The grievance meeting was heard on 6 December 2012. The claimant, through Mr Cunningham, alleged a lack of fairness in the investigation process and on the decision to suspend him on full pay. He claimed that Mr Spruth had pre-determined the matter by referring to what had happened on 2 November 2012 as ‘an incident’. The grievances were not upheld.
47. No appeal was lodged against the grievance decision.
48. On 12 December 2012, Mr Adlington wrote to the claimant confirming his decision that there had been gross misconduct and that the claimant would be dismissed summarily with effect from 12 December 2012.
49. The letter stated:-
“The hearing had been arranged to discuss the following alleged offences:-
An allegation of assault which took place on Friday the 2nd of November 2012.
The above offence is deemed as gross misconduct. You were given every opportunity to explain and account for your actions in relation to this incident and having listened to your explanation I consider them to be unsatisfactory for the following reasons:
After consideration of the evidence presented by all the parties; including follow up with the complainant and an eyewitness following the disciplinary hearing with you and information provided by yourself during the disciplinary hearing I have reason to believe the above alleged offence was committed by you. This reasonable belief is based on the evidence available to me and is strengthened by the independent witness who has been interviewed twice and has confirmed the situation that he witnessed on the 2nd of November 2012.
Regardless of whether there had been prior verbal communication between you and the complainant the company has a grievance procedure in place which is there for both the benefit of the company and the employee should it be required by either party. The use of the said procedure may have prevented such an incident occurring in the first instance should you have deemed the treatment of yourself severe enough to initiate it.”
50. The claimant wrote to Mr Hillis with his letter of appeal on 20 December 2012. He denied assaulting Mr Gilmore. He stated that Mr English had brought his personal animosity to bear on the matter. He alleged that Mr Gilmore had been the aggressor. He stated that the incident had been as a result of continual and constant harassment of him by Mr Gilmore about his sexuality. He complained that he had been ‘singled out’ and suspended. He alleged bias.
51. The appeal hearing was arranged for 9 January 2013 and reconvened on 17 January 2013. The appeal hearing was conducted by Mr Howard Hillis and Karen Burgess was scheduled to take notes. Mr Cunningham objected to Ms Burgess taking notes and the matter was adjourned briefly to allow a Rachel Kydd to be the note taker.
52. Mr Cunningham and the claimant agreed with each other, for some reason, at the start of the meeting that the hearing should not take more than 10 minutes. That is difficult to understand.
The claimant asserted that he did not assault Mr Gilmore. He stated that he had wished to clear the air with Mr Gilmore and that Mr Gilmore and he have not spoken for between 18 months and two years. He stated that over the past 18 months, Mr Gilmore had been making snide remarks aimed about his sexuality. This again is a different version of the timing and extent of this alleged homophobic abuse.
53. When Mr Hillis, in the course of the appeal hearing, sought further details of the alleged campaign of homophobic abuse, the claimant and Mr Cunningham argued that that was not appropriate and that Mr Hillis was only allowed to look at matters which had been looked at by Mr Adlington. In any event, further information was not given and Mr Hillis was simply referred to the names and the allegations given to Mr Adlington.
54. The claimant alleged that he had not had an investigatory hearing. He stated that he had not assaulted Mr Gilmore. He argued that Mr Gilmore should also have been suspended. He had not spoken to Mr Gilmore for 18 months – 2 years. He stated that Mr Gilmore had been making remarks to others about his sexuality. He alleged that Mr Spruth had said:-
“I’m here to ask questions about the assault.”
That differs significantly from what had been said at the grievance procedure; that Mr Spruth had referred to ‘the incident’. Where no one argued that there had been an ‘incident’, this variation in evidence, which was repeated in the tribunal hearing, was significant. Mr Cunningham at one point alleged that Mr Hillis has suspended the claimant.
55. On 23 January 2013, Mr Hillis interviewed Mr Jim Fenton. Mr Fenton confirmed that Mr Gilmore had made a remark in the minibus to the effect that ‘it would suit them better if he came out of the closet’. The claimant was present at that point in time. He stated that there had been general comments over the past 12 – 18 months amongst the workforce.
56. On 25 January 2013, Mr Hillis met Mr William Stitt. Mr Stitt confirmed that he was on the minibus on 1 November 2012 but had not heard any comments specific to the claimant. There had been a lot of general banter.
57. On the same day, Mr Hillis interviewed Mr David Brown. Mr Brown stated there were always had been comments on the bus with everyone having a go at each other. He stated that Mr Gilmore had said something about somebody should come out of the closet. He stated it was a general comment but everyone knew he was referring to the claimant because they knew they did not get on. He stated that comments had been made in general by everyone in relation to the claimant and his sexuality. That was the environment.
58. Mr Hillis interviewed two other individuals who had nothing to add to the subject.
The notes of these interviews were not passed to the claimant for comment but it is unlikely that any such action would have produced any useful comment.
59. The appeal against the dismissal was not upheld.
Decision
Reason for dismissal
60. The first issue for the tribunal to determine in an unfair dismissal claim is the reason for the dismissal. The onus of proof rests upon the respondent in this respect; thereafter the burden of proof is neutral.
61. The tribunal is satisfied that the reason for the dismissal in this case was conduct; a potentially fair reason for the purposes of the 1996 Order. The claimant had not been subject to any disciplinary investigation or procedure until Mr English reported the alleged assault to Mr Gourley, who in turn told Mr Hillis, the port operations manager. While there had been previous difficulties with the claimant’s driving abilities, nothing had arisen which had given rise to the possibility of disciplinary proceedings leading to dismissal. The claimant alleged that there had been an undefined conspiracy to dismiss him. However, apart from the claimant’s unsupported and vague assertions, there was no evidence to support this allegation of a conspiracy. It is clear from the evidence of the respondent, and it is not disputed by the claimant, that there had been an incident on 2 November 2012 between the claimant and Mr Gilmore. Mr Gilmore alleged that he had been assaulted. No counter-allegation from the claimant emerged until the disciplinary hearing. It was inevitable in such circumstances that the matter would proceed through a disciplinary investigation to a disciplinary hearing. The claimant was charged with nothing other than the alleged assault and therefore this is a conduct issue and nothing else. There is no evidence that Mr Gilmore’s reported concerns initially about ‘local reaction’ or ‘paramilitaries’ played any part in the respondent’s decision-making process. Having heard Mr Adlington and Mr Hillis, the tribunal is satisfied that they considered only the allegation of assault.
Procedural fairness
62. After the claimant was suspended on 6 November 2012, he was advised in writing that there would be a preliminary investigation. It cannot realistically be argued that it was unfair to suspend the claimant and not Mr Gilmore. The claimant chose not to complain about Mr Gilmore, or to allege that he had been assaulted by Mr Gilmore, until much later. He was invited to the investigatory meeting. He failed to address the allegation of an assault on 2 November 2012, despite being given a full opportunity to do so. He was not promised a second investigatory meeting. He was told that the meeting had been adjourned and that ‘the company will be in contact with you’. That is what happened on 20 November 2012 when the respondent invited the claimant to a disciplinary meeting.
The claimant, having chosen to refuse to answer the allegation of assault, could not reasonably have expected any other result. The tribunal concludes that the investigation procedure was fair and reasonable.
63. A letter issued to the claimant on 20 November 2012 inviting the claimant to a disciplinary hearing which was initially scheduled for 22 November 2012. It stated that the purpose of the meeting was to allow the claimant the opportunity to provide an explanation for:-
“An allegation of assault which took place on Friday 2nd of November 2012.”
The letter made it plain that the behaviour in question might amount to gross misconduct and if it were to be determined that gross misconduct had taken place the claimant could be summarily dismissed. The claimant was also reminded of his right to representation.
The claimant sought to argue in the course of the tribunal hearing that insufficient details had been provided for the purposes of Paragraph 1(1) of the standard procedure set out in the schedule to the 2003 Order. That argument cannot be sustained. When a criminal indictment might have been worded in more detail and with more specifics, anyone in receipt of such a letter would have known precisely what charge he was facing. Unless the claimant had been involved in more than one alleged assault on 2 November 2012 there was no room for confusion. Furthermore, it was never argued by the claimant, before the tribunal hearing, that there had been room for confusion. The tribunal is therefore content that Step 1 had been fulfilled.
64. The disciplinary meeting was re-scheduled at the claimant’s request to 29 November 2012. The tribunal is therefore satisfied that the claimant had a reasonable opportunity to consider his response to the charge. After hearing Mr Adlington, it is also satisfied that the disciplinary meeting took place before any decision had been reached. The respondent notified the claimant of its decision to summarily dismiss him after the meeting by letter dated 12 December 2012. The claimant was also notified in that letter of his right to appeal. The tribunal is therefore content that Step 2 had been fulfilled.
65. The claimant appealed by letter dated 20 December 2012 and the appeal hearing was held on 17 January 2013. The tribunal is content that Step 3 had been fulfilled.
66. Turning to procedural fairness, other than the requirements of the statutory procedure, the process started with the notification of the alleged assault by Mr English to Mr Gourley and then to Mr Hillis. Mr Hillis made the decision to meet Mr Gilmore, having been informed by Mr Gourley that Mr Gilmore did not want the matter to go any further. Having listened to the evidence of the parties, the tribunal is satisfied that this decision on the part of Mr Hillis was entirely reasonable and indeed a decision which a reasonable employer was obliged to make. Mr Hillis had been notified of an alleged assault in the workplace. He could not reasonably have chosen to ignore that report and to have done nothing further unless Mr Gilmore chose to raise the matter. The respondent owed a duty of care to all its employees and was in a difficult position if it ignored a clear report of an alleged assault within the workplace. In summoning Mr Gilmore to a meeting and in advising Mr Gilmore to make a written internal complaint and indicating to Mr Gilmore that he should consider reporting the matter to the PSNI, Mr Hillis was simply acting reasonably and in a proper manner. Arranging for photographs to be taken of the facial marks was no more than the actions of a prudent manager who had heard of an alleged assault. His conduct cannot properly be criticised.
It is more likely then not that Mr Hillis had been told that part of Mr Gilmore’s reluctance to report the incident was a fear of local reprisal. However, beyond Mr Hillis telling Mr Gilmore that he should consider reporting the incident to the PSNI, that issue does not appear to have played any significant part in the process. The process was concerned with the incident and the allegation of assault.
67. As soon as Mr Gilmore had decided, and it was his decision, to make a written complaint of an alleged assault, that written complaint was handed to Mr Hillis. He handed it immediately on to Human Resources and took no further part in the investigation or the initial disciplinary process. Again the conduct of Mr Hillis cannot be criticised in this respect. An alleged assault in the workplace is a serious matter and could not properly be ignored. He was entirely within his rights and indeed obliged to act as he did. The tribunal is satisfied that he had not made up his mind in relation to the allegation of assault and it is satisfied that he did not make the decision to suspend the claimant.
68. The investigation process was passed by Human Resources to Mr Spruth. Having clarified the allegation with Mr Gilmore and Mr English, Mr Spruth met the claimant, who was represented by Mr Cunningham from Unite. Mr Spruth attempted to get the claimant to address the allegation of an assault and was completely unsuccessful. The meeting concluded with the statement:-
“This meeting is now adjourned and the company will be in contact with you.”
69. The claimant was never promised that there would be a further investigation meeting with him before matters could proceed any further. The statement given at the end of the investigatory meeting was self-explanatory. The company (the respondent) did indeed get in contact with him, when they notified him of a disciplinary procedure. It is entirely unreasonable for the claimant to now insist that he had a right to a further investigation meeting before matters could properly or fairly have proceed any further. He had had a full opportunity, with representation, to put forward his version of events at the investigation meeting. He chose not to do so. The decision, on the part of Mr Spruth, to recommend that the respondent proceeded to a disciplinary process was entirely reasonable and not open to criticism. The grievances lodged by the claimant did not directly bear on the alleged assault and did not mean that the disciplinary process should have been delayed.
70. There appears to have been some argument at earlier stages in the litigation on whether, as a requirement of procedure, the grievances against Mr Spruth and Ms Burgess should have stopped the disciplinary action against the claimant. This tribunal was not referred to any provision in the disciplinary or grievance procedures requiring that this should happen and it did not form any part of the argument. It is in any event clear that the claimant decided to continue with the disciplinary hearing even though his representative, Mr Cunningham, had raised the issue of the grievance.
71. The photographs taken of Mr Gilmore’s face at the request of Mr Hillis and the interview records were not copied to the claimant. However the tribunal has to remember that this was an internal disciplinary process within the workplace. It was not a criminal trial with procedural requirements relating to disclosure (see Ulsterbus v Henderson (NICA) [1989] IRLR 251). The test is fairness. The tribunal is satisfied that the claimant knew what he was being charged with and that he was given a full opportunity to respond. It is also clear that the claimant and his representative were able to address, in detail, during the disciplinary hearing, the statement of Mr English and Mr Gilmore.
72. The disciplinary hearing was conducted on 29 November 2012 by Mr Adlington. The first part of that meeting was wasted with Mr Cunningham again seeking to raise procedural points. The claimant asked for a recess, which was granted. After that recess, Mr Cunningham stated that the claimant wished to address the alleged assault against his advice. At that point, Mr Adlington stated that minutes would be taken by Ms Burgess. Mr Cunningham stated:-
“We are not agreeing your minutes they will be your notes.”
Given that Mr Cunningham and the claimant obviously could not have seen the minutes which were yet to be taken, this refusal in advance to agree those minutes was unhelpful.
73. The claimant went on to put forward the argument, for the first time, that he had been the subject of a campaign of homophobic abuse and that when he sought to raise this matter with Mr Gilmore he had been assaulted by Mr Gilmore grabbing the top of his coat and pulling him forward on top of Mr Gilmore. The claimant was given a full and complete opportunity, with representation, to put forward his entire response to the allegation of assault. Mr Cunningham was given a full opportunity to raise various points in support of the claimant’s position. The claimant gave three names of individuals who he stated had been in the works minibus on 1 November 2012, the day previous to the alleged assault, who were witnesses to the alleged homophobic abuse.
74. Mr Adlington did not interview those three individuals. He took the view, correctly, that any evidence they could give would not be directly relevant to the allegation of an assault on 2 November 2012. That said, it is clear that Mr Adlington should have interviewed those three individuals to provide a complete picture, even if only by way of potential mitigation, of the alleged assault. It was important for Mr Adlington to know the entire background to the alleged assault before reaching a determination, both on guilt and, if appropriate, penalty. If matters had remained at that point, the tribunal may well have determined that the procedure was unfair.
75. However matters did proceed to appeal. Mr Hillis heard the appeal on 17 January 2013. The claimant was again represented by Mr Cunningham. Mr Cunningham opened the meeting by indicating, with the agreement of the claimant, that the meeting should take no more than 10 minutes. That was an extraordinary statement for Mr Cunningham and the claimant to make and does bring into question the level of seriousness with which he and the claimant approached this procedure.
76. The claimant and his representative were again given a full opportunity to address the allegation of an assault on 2 November 2012 and to provide full details of the background leading up to the incident. Mr Hillis was careful to get a full background to that incident and asked for specific details of the alleged pattern of homophobic abuse. He asked, in particular,:-
“Can you give me evidence of remarks, ie dates, times, names?”
The claimant’s response was that Mr Hillis had them already. Mr Cunningham intervened to indicate that he was not going to allow a new investigation to open and that if Mr Hillis wanted further information he would have to speak to Mr Adlington. Mr Hillis attempted again to seek further details of the alleged pattern of homophobic abuse. He pointed out that his role was to look at the evidence and that if matters were going to impact on the decision he needed to know. Mr Cunningham’s response was:-
“An appeal is not to look at new evidence, it is to review what is already evidence.”
The respondent’s disciplinary policy does not seek to restrict an appeal in this way. It states:-
“An employee has the right of appeal against any disciplinary action taken. Appeals will be heard by a senior manager or senior member of the resources team if the case is brought forward within 10 working days of action being reviewed.”
77. Mr Hillis spoke to individuals who were on the works minibus on 1 November 2012. He spoke to Mr Jim Fenton, Mr W Stitt, Mr David Brown, Mr Noel McKeown and Mr Clark Watson. Those witnesses indicated that a remark had been made, that there had been a pattern of remarks and that it was known that remarks from Mr Gilmore had been aimed at the claimant. Those interviews were not disclosed to the claimant and he was not asked to comment. However, given the attitude the claimant had taken during the appeal meeting, Mr Hillis cannot properly be criticised for failing to do so. It was highly unlikely that either the claimant or his representative would have been any more co-operative than they had been during the appeal hearing.
78. It is clear that Mr Hillis conducted this appeal fairly and that he made all proper investigations and asked all proper questions. It is equally clear that he had not made his mind up at that stage, or at any earlier stage, about the allegation of an assault. His earlier involvement when he received the news of an alleged assault from Mr Gourley was simply to advise the source of the allegation, Mr Gilmore, to lodge an internal complaint and that he should consider reporting the matter to the PSNI. He did not seek to determine that complaint, to require that complaint to be made, or in any way to indicate bias or prejudice. It is important in assessing these matters that the tribunal remembers that what it is dealing with in this situation is an internal disciplinary procedure in a normal employment environment. It is not determining the correct conduct of a criminal prosecution conducted by professional lawyers in various courts and appeal courts. The actions of Mr Hillis in this respect in taking part in the appeal, in conducting the appeal and determining the appeal, were in the tribunal’s view, reasonable and not open to proper criticism.
Substantive fairness
79. Turning to substantive fairness, this is a situation where the respondent, in the person of Mr Hillis, knew that there had been an allegation of an assault. He had before him evidence from Mr Gilmore which was supported by clear evidence from Mr English. He had also before him a very late denial and a very late alternative version of events put forward by the claimant. While this tribunal may have doubts about parts of Mr English’s statement and in fact may consider it exaggerated in parts, that is not relevant to the determination of the fairness of the dismissal. Mr Hillis, on the evidence before him, was entitled to conclude that there had been an assault by the claimant on 2 November 2012.
80. Mr Hillis preferred the evidence of Mr Gilmore and that of Mr English to that of the claimant. He accepted Mr English’s version of events and Mr Gilmore’s later version of events; ie that the claimant had repeatedly punched Mr Gilmore. He accepted that Mr Gilmore had not wanted to get the claimant into trouble and that he had concerns about what might be termed ‘local reaction’ if he had complained of assault.
81. It seems clear that Mr Gilmore expressed some concern on 5 November 2012 about adverse reaction from paramilitaries and his fear of some sort of reprisal. However there is no evidence that this formed any part of the decision-making on the part of either Mr Adlington or Mr Hillis, other than as an explanation for Mr Gilmore’s changed story. After observing both give evidence, the tribunal is satisfied that they approached the matter solely as an alleged workplace assault, and nothing more. The respondent took the view that while Mr Gilmore had initial concerns about reporting the alleged assault, he changed his mind after being advised to report the alleged assault. The respondent took the view that Mr Gilmore’s changed story was supported by an independent witness and that it was true. A reasonable employer acting reasonably was entitled to take that view. It is not entirely the view of this tribunal. However we have had the benefit of observing the claimant, Mr Gilmore and Mr English being professionally cross-examined. The decision of Mr Hillis on appeal must be judged against the standard of a reasonable employer acting reasonably on the evidence before him. The tribunal may not properly second-guess him simply because after a full tribunal hearing we have concluded that the ‘assault’ consisted of pushing rather than punching.
82. The tribunal is satisfied that the respondent, after the conclusion of the internal appeal, held a reasonable belief on reasonable grounds that the claimant had assaulted Mr Gilmore, and that belief had been reached after a reasonable investigation.
83. The employer was entitled, on that basis, to conclude that the proper penalty was a summary dismissal. While it was clearly the sort of case where a lesser penalty, eg a Final Written Warning, might have been considered, it is not the sort of case where the tribunal could say that a reasonable employer acting reasonably would not have dismissed the claimant in these circumstances.
Conclusions
84. Therefore, the tribunal concludes that the claim of unfair dismissal is dismissed. This was a fair dismissal for gross misconduct.
85. The tribunal therefore does not need to go further in this matter.
Vice President
Date and place of hearing: 2 – 4 March 2015, Belfast
Date decision recorded in register and issued to parties: