Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1391/16

 

 

 

CLAIMANT: Mary O'Neill

 

 

RESPONDENT: Envision Intelligent Solutions Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the respondent was in breach of his duty to give the claimant a written statement of particulars of employment when proceedings were commenced. The claimant is awarded compensation in the sum of £5,550.00.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

 

Members: Mr A Carlin

Mrs E Gilmartin

 

 

Appearances:

The claimant was represented by Ms Tremlett, Barrister-at-Law, instructed by P Vernon & Co Solicitors.

The respondent was represented by Mr Martin O'Brien, Barrister-at-Law, instructed by JPH Solicitors.

 

 

THE CLAIM

 

1.             The claimant in her claim complained that she had been unfairly dismissed for alleged defamation and accusing a member of the management team of lying following her giving to the respondent information about another employee which she thought was in the respondent's best interests. The claimant stated her feeling that the reason for her dismissal was manufactured as an excuse to get rid of her and belief that the real reason was the respondent did not like how she stood up for the rights of cleaners.

 

2.             The respondent in its response resisted the claimant's unfair dismissal claim; the 'element of the claim' that the reason given was manufactured; and the allegation that the dismissal was linked to the claimant standing up for the rights of cleaners. The respondent contended that the dismissal was fair having followed correct disciplinary procedures by reason of the claimant's conduct of making a false allegation about another employee, her behaviour causing undue distress to a fellow employee, potentially damaging the respondent's reputation and acknowledging that the claimant had a live written disciplinary warning on her file from March 2016.

 

THE ISSUES

 

3.             The issues for the tribunal were as follows:

 

(1)           What was the reason for the claimant's dismissal.

 

(2)           Did the respondent believe that the claimant was guilty of the misconduct alleged.

 

(3)           Did the respondent have reasonable grounds upon which to sustain such a belief in the claimant's guilt following a reasonable investigation.

 

(4)           Were the procedures adopted and the penalty imposed within the band of reasonable responses for a reasonable employer in all the circumstances.

 

(5)           If the claimant was unfairly dismissed, did she by her conduct contribute to her dismissal such that a percentage reduction of any compensation should be applied.

 

(6)           If there was a procedural irregularity rendering the decision to dismiss unfair, should a Polkey reduction be applied to any compensation awarded.

 

(7)           Has the claimant unreasonably failed to mitigate her loss.

 

(8)           Is the claimant's inability to work due to ill-health since the date of the dismissal attributable wholly, or in part, to the actions of the respondent in dismissing her and should compensation be adjusted to reflect this.

 

(9)           Was the respondent in breach of its duty to provide the claimant with a written statement of employment particulars.

 

SOURCES OF EVIDENCE

 

4.             The tribunal considered the claim, response, agreed bundle of documentation, agreed schedule of loss and written statements of the witnesses together with their oral testimony. The tribunal heard evidence on behalf of the respondent from Ms Carol Woods, the respondent's Business Manager and Mr Philip Murdock Managing Director of the respondent company. The claimant gave evidence on her own behalf and the tribunal heard evidence from, Ms Tracey Livingstone and Ms Kirsty Ingham, former fellow employees of the claimant and Ms Celine McDonald, on her behalf.

 

FINDINGS OF FACT AND CONCLUSIONS RELEVANT TO LIABILTY

5.             The claimant was employed by the respondent as a cleaning supervisor from 12 December 2011 until her dismissal on 14 March 2016. As part of its screening procedures the respondent required the claimant to provide details of her employment in the preceding five years.

 

6.             No written statement of particulars of employment was received by the claimant from the respondent. There was no record to acknowledge receipt by the claimant of a copy of the contract of employment which Mrs Woods gave evidence that she had prepared and handed in an envelope to the claimant in late December 2011. We find more credible and probable on balance the claimant's evidence supported by that of Ms Livingstone and Ms Ingham that they were not given contracts of employment by the respondent relating to their employment, that she did not receive from the respondent a statement of written particulars of her employment prior to commencement of these proceedings.

 

7.             The respondent has a Company Disciplinary Procedure which during the claimant's employment was displayed on a notice board in the respondent's security control room. The procedure provides under ' PRINCIPLES' that no disciplinary action will be taken against an employee until the case has been fully investigated and that the employee will be advised of the nature of the complaint against them and given an opportunity to state their case before any decision is made. Under its investigation procedure it is confirmed that before any disciplinary action is initiated a thorough investigation will be carried out to establish whether there is a problem and if formal disciplinary action needs to be taken. Under ' Disciplinary Hearing' at which the employee can be accompanied by a colleague of their choice or representative, the procedure states that 'prior to any disciplinary hearing the employee will be informed of the nature of the problem and any supporting evidence that may exist. At the disciplinary hearing the employee will be given an opportunity to put forward his/her case and question supporting evidence', and 'A member of the Management Team will consider the points raised in the hearing in an adjournment and make a decision'. Provision is made under 'GROSS MISCONDUCT' for summary dismissal without notice or pay in lieu of notice 'following investigation and after a full disciplinary hearing'. A non-exhaustive list of examples regarded by the respondent as gross misconduct and negligence is given, but none of which clearly fit the conduct for which the claimant was dismissed. Under ' APPEALS PROCEDURE' it is specified that the ' employee must appeal in writing within five working days from the date the warning was issued stating the grounds for the appeal'.

 

8.             It was the claimant's practice to call at the Control Room to tell Security staff when she had arrived and when she was leaving work. Other than that the claimant was present in the Control Room to clean it for at most approximately ten minutes at a time. We accept that the claimant was unaware of the presence or content of the Procedure displayed on the notice board given the limited time and purpose for which she was present in the Control Room and whilst arguably readily available to her we do not consider that the respondent had taken all reasonable steps to ensure that she knew and understood same, as recommended in the LRA Code of Practice on disciplinary and grievance procedures.

 

9.             In January 2016, following a remark by another member of the respondent's cleaning staff (employed since Spring 2015 and hereinafter referred to as 'the Employee') recognising where the claimant had previously worked, the claimant recollected and became concerned that the Employee was the person identified to her in an account given to her by the owner of a petrol station approximately ten years ago that he allegedly had lost considerable money due to fraud by an employee.

 

10.          Following the introduction by the respondent of a new procedure for the distribution of toilet rolls amongst business park tenants, as a result of which it began to lock up toilet rolls, the claimant approached Christine Russell and queried whether they were locking up toilet rolls because they thought the cleaners were stealing. Ms Russell reassured the claimant that they did not. The claimant asked Ms Russell if she could disclose a matter she had heard about a cleaner without naming them but was told she would have to identify the person. The claimant then asked could the matter be kept confidential, Ms Russell told the claimant that it would have to be shared with Mrs Woods. The claimant informed Ms Russell of an account given to her about the Employee by the garage owner. The date and specific terms used in the conversation that took place between the claimant and Ms Russell were in dispute. No written record of the claimant's disclosure to Mr Russell was kept, nor of Ms Russell's onward report to Mrs Woods. The respondent's minutes of 2 March 2016 record that Mrs Woods confirmed the reason for calling the meeting was ' regarding the allegation that Mary had made to Christine 5 weeks ago'. We find more probable the claimant's evidence, supported by the respondent's minutes of the meeting on 2 March 2016, that the claimant made the report to Ms Russell in January 2016 rather than as stated by Mrs Woods in her statement, on the morning of 18 February 2016. Ms Russell subsequently informed Mrs Woods of the report made to her by the claimant.

 

11.          In February 2016 the claimant had a fall at work whilst present there before her normal working hours.

 

12.          By letter dated 10 February 2016 the respondent wrote to require the claimant to attend a meeting on 12 ^th February 2016 to be held by Carol Woods to ' discuss concerns about following procedures in accordance with the Company Management and Personnel procedures and policy manual'. The claimant was made aware that the outcome of the meeting 'may be a recommendation for disciplinary action' and advised she could be accompanied ' by another work colleague' as her representative.

 

13.          The claimant attended the meeting on 12 February 2016 with Mrs Woods, accompanied by fellow employee, Ms Livingstone. The claimant was unsure as to the reason for the meeting and whether it related to her fall at work. As recorded in minutes of the meeting Mrs Woods indicated that the meeting was about times, pointed out that the claimant knew that there were certain times that she was meant to be in work as requested by their customer and asked 'So why were you in at 7?' The claimant explained that the customer had asked her to come because there had been no cleaner in and the bins were overflowing. Mrs Woods put to the claimant that this did ' not explain every other night that you come in early' and stated that it was for the customer to come to her if they wanted their hours changed. The claimant responded 'I let security know I am here'. Mrs Woods confirmed to the claimant that for health and safety she should only be present for her shifts because the respondent would not otherwise know that she was there and that the claimant needed to contact Mrs Woods if the customer asked her to work. Mrs Woods told the claimant ' you need to stick to the rules'. The claimant pointed out that she 'fell in work and never put a claim in'. Mrs Woods responded that the claimant fell when she should not even have been there. Mrs Woods informed the claimant that she needed to know where the claimant was working and when and asked would she stick to her hours, which the claimant agreed to. No outcome or next stage was indicated to the claimant. The claimant then chatted on amicably with Mrs Woods before leaving. The claimant believed that the matter had been resolved and that was the end of it.

 

14.          Mrs Woods prepared a letter dated 15 February 2016 to the claimant in which she set out that ' You attended a disciplinary hearing on 12 ^th February I am writing to inform you of your written warning'. The letter stated the warning was for changing agreed working hours without consent or knowledge of Management, they expected agreed hours to be reverted to and not changed unless previously agreed with Management and the likely consequence of further misconduct or insufficient improvement was a final written warning. A right of appeal was confirmed. The letter was left in an envelope marked for the claimant in the Control Room and Mrs Woods assumed that it was subsequently received by the claimant. The claimant did not however receive the letter of 15 February 2016 and was unaware of it until it was later referred to by Mr Murdock in a meeting on 7 March 2016.

 

15.          Mrs Woods in her evidence stated that she was advised on the morning of 18 February 2016 by Ms Russell that the claimant had come to Ms Russell's office ' that morning to ask if we had an issue with theft...' and proceeded to make allegations about the Employee. This account is clearly contradicted by the respondent's own minutes of a meeting on 2 March 2016 that the claimant's report to Ms Russell was made five weeks before, which is in accordance with the claimant's evidence. We find Ms Wood's evidence unreliable as to the dates of the claimant's report and Ms Russell's subsequent relaying of the matter to Mrs Woods. We accept however that on 18 February 2016 Mrs Woods, having checked the respondent's screening file for the Employee whom the claimant had identified to Ms Russell, spoke to Mr Murdock about the report made by the claimant. The Employee's job application form and references showed no gaps in employment in the preceding five years nor employment in a petrol station and credit check was clear. Mr Murdock after looking at the screening file told Mrs Woods to speak to the Employee about the allegation.

 

16.          On 18 February 2016 Mrs Woods advised the Employee of a report made by the claimant about her. The Employee denied the allegations put to her by Mrs Woods and became extremely upset, so much so that she had to be sent home from work and took a week off thereafter with stress.

 

17.          By letter of 29 February 2016 to the respondent, the Employee raised a formal grievance following a complaint made against her by the claimant and which she stated she hoped could be solved quickly and amicably for all involved. The Employee set out that the allegations made were completely fabricated, based on no factual information and dangerous. The Employee expressed concern at the repercussions for herself and the respondent which she considered to be dangerous slander on her name and reputation; could and possibly have had a negative impact on her reputation; had caused her a great deal of stress and anxiety to the point she had considered her role in the respondent company; and could bring risk to the respondent's contracts if the allegations were ever to surface because she would not be trusted to access restricted areas of companies.

 

18.          When the claimant arrived at work on the evening of Monday 29 February 2016 the respondent's security staff telephoned Mrs Woods on her instruction and she spoke to the claimant over the telephone. Mrs Woods informed the claimant that she was suspended from work and asked her to come to a meeting on Wednesday 2 March 2016. The claimant asked ' why'? Mrs Woods replied that it was 'over...' and stated the Employee's first name. The claimant told Mrs Woods that she would need it in writing.

 

19.          On 29 February 2016 the claimant received a telephone call from the Employee who asked if she had said the things reported to her by the respondent. The claimant queried who had told her and when Ms Russell's name was given the claimant stated that she would ' see Christine Russell myself'.

 

20.          On 2 March 2016 the respondent in response to the claimant's request for something in writing sent via an email address supplied by the claimant a letter from the respondent dated 29 February 2016 which set out:

 

' Further to our meeting on Monday I am writing to confirm that you are required to attend a meeting on 2 March....

 

At this meeting we shall discuss a grievance which has been lodged by a member of staff for defamation of character regarding an allegation of theft and also accusing a member of the management team of lying.

 

You should be aware that the outcome of this meeting may be a recommendation for disciplinary action....'

 

The claimant was not in receipt of a copy of the respondent's letter before her meeting with Mrs Woods took place.

 

21.          The claimant attended a meeting with Mrs Woods on 2 March 2016 accompanied by Ms McDonald. We accept the evidence of the claimant supported by Ms McDonald and the respondent's minutes that the claimant was unaware as to why she had been asked to attend the meeting. As recorded in the minutes, the claimant at the outset stated that she did not know why she was there. Mrs Woods stated that the reason for calling the meeting was regarding the allegation Mary had made to Christine Russell 'five weeks ago', when they had secured the toilet roll supplies, about the Employee being dismissed from her previous position due to theft; that she had alleged the Employee had worked in a garage and that her manager at the time suspected that she was stealing and that when it was proven she had to sign her home over to cover the amount. Mrs Woods informed the claimant that the allegation was passed to her and they did not pursue it as they had no issue with theft, did not suspect anyone of theft and no issues had been uncovered by their five year screening exercise. Mrs Woods stated they had spoken directly to the Employee regarding the allegation and she was extremely upset and asked them to look into the allegation as she had been wrongly accused and victimised. Mrs Woods in her evidence confirmed that she, during the meeting on the 2 March 2016, put direct questions repeatedly to the claimant in a way which she likened to cross examination and that where she considered matters raised by the claimant irrelevant she was dismissive of the claimant's answers. On balance we accept the claimant's evidence that she felt that the tone of the meeting with Mrs Woods had very quickly changed from courteous at the outset to thereafter aggressive. Mrs Woods put to the claimant that the claimant had spoken to the Employee on 29 February 2016 regarding the allegation and had denied making the allegation. The claimant denied doing so and relayed how she told the Employee she would speak direct to Ms Russell and did so again on being told it was Ms Russell who informed the Employee. Mrs Woods asked how the claimant had found out about the alleged theft, she replied she had heard it from two different people; once she had found out she spoke to Ms Russell but did not wish to give the name of the employee concerned however was advised she could not make an allegation without doing so, and so had identified the Employee; she had asked Ms Russell to treat it as confidential but was told it needed to be passed to Mrs Woods. Mrs Woods put to the claimant because of the nature of the allegation it could not be treated as confidential and would be investigated; she asked was it correct the claimant offered to provide contact details of the past employer to verify the allegation, the claimant replied ' I probably did but I can't remember but just put down yes anyway'. The claimant stated that she did not wish to hurt the Employee's feelings and had said it just out of ' hearsay' and it was meant to be confidential. Mrs Woods stated allegations have to be passed to management and investigated and that there was never a suspicion of theft in the company. She then put to the claimant that the Employee had lodged a grievance against the claimant for defamation of character, was worried other people had been told of the allegation and also that people were talking about her. The claimant again relayed the extent of the telephone conversation she had had with the Employee. The claimant suggested she could maybe find the employer's telephone number to verify the allegation. The claimant pointed out she had told Ms Russell for the respondent's sake given she had worked with them for eight years, confidentiality had been agreed and the allegation was not malicious. Mrs Woods indicated that she would confirm with the Employee about the telephone conversation that took place. The claimant stated that the only person she had told was Ms Russell but the Employee had told everyone. Mrs Woods asked how the claimant was aware of this, the claimant responded she had received calls asking what had happened but she did not tell anyone anything further and said it was between her and the respondent. The claimant again stated that she only did it to help the respondent. Mrs Woods stated that the Employee lodged the complaint due to the claimant's hearsay and the claimant agreed that she made the initial allegation. The claimant expressed feelings of annoyance and being ganged up on by the company ' as this is her 2 ^nd disciplinary and she did not receive a letter regarding this one and did not know what she was coming in for'. Mrs Woods responded that she had explained on the phone and that ' sending a letter would have been impossible' because the claimant had not provided her new address when she moved. The claimant again stated that the allegation was not malicious or she would not have spoken to the Employee directly. Mrs Woods explained the next step would be to speak to the Employee to clarify the telephone conversation and she would be in touch with the claimant as soon as possible and informed the claimant she was suspended on full pay until the investigation was complete. The claimant supplied Mrs Woods with her new address for future correspondence and Ms McDonald asked that a copy of the minutes be sent out. We accept on balance the evidence of the claimant supported by Ms McDonald and minutes of the meeting that the meeting's purpose as investigatory was not explained, it was not made clear that the meeting was not a disciplinary meeting, mention of the grievance lodged by the Employee was not made until three quarters of the way through the meeting, the claimant was not afforded time or opportunity to respond to matters and overall that the investigatory meeting was not conducted in an open or transparent way.

 

22.          By letter of 3 March 2016 sent to the claimant, the respondent required the claimant ' further to our investigatory meeting on 2nd March 2016' to attend a disciplinary meeting on 7 March 2016 at which ' the question of disciplinary action against you in accordance with Company Disciplinary Procedure will be considered with regard to: Defamation of character against another member of staff'. Minutes of the meeting of 2 March 2016 were enclosed. The letter advised the possible consequence arising from the meeting might be dismissal and of the right to be accompanied. No more specific detail of the allegation or evidence against the claimant following investigation was provided to the claimant in advance of the disciplinary hearing.

 

 

23.          At 4.00 pm on 7 March 2016 the claimant accompanied by Ms Ingham attended the disciplinary hearing conducted by Mr Murdock with notes taken by Ms Russell. As recorded in the minutes at the outset of the meeting Mr Murdock thanked the claimant for coming in and confirmed that at this stage in a situation he handles the file. Mr Murdock informed the claimant that he had looked at all the facts from last week's investigatory meeting about the allegations the claimant had made about the Employee; that he had studied the investigation and the Employee had raised a grievance over it and he stated, ' So now I need to decide the verdict and I am not going to go over everything again'. The claimant replied ' Yes we don't need to go over this all again'. Mr Murdock then said ' In light of the first written warning' at which point the claimant interrupted stating that she had no written warning. Ms Russell interjected ' After the last meeting about time management you were given a written warning'. The claimant replied that she did not get any letter. Mr Murdock however continued 'This meeting is not about that. The meeting before dealt with that. I am not going to beat about the bush. But we are going to have to let you go on the basis of last week's meeting and these allegations'. The claimant responded ' Well I knew that on Thursday' to which Mr Murdock pointed out she could not have known as her file was only put on his desk on Friday and that he could make up his own mind. The claimant stated ' Ok well I am going to appeal this because I did not get my letter the last time'. Mr Murdock confirmed the claimant could appeal; they would be getting a letter out that day and asked that she address her appeal letter to him and the meeting concluded. There was a dispute at hearing as to the length of the disciplinary meeting, how it was conducted and whether Mr Murdock in the course of it left the room and took at least eight minutes out to deliberate on the case before making his decision. In light of the respondent's minutes and Ms Ingham's evidence we consider Mr Murdock's evidence unreliable and find the claimant's evidence more probable that the meeting took less than ten minutes; that Mr Murdock did not step out of the room or take time out to deliberate on the case before delivering his decision; and overall that the respondent did not outline fully the allegation and evidence against the claimant and the claimant was not given proper opportunity to explain herself or to challenge the case against her.

 

24.          By letter dated 7 March 2016 to the claimant, Mr Murdock set out that they had met that day and discussed the ' Grievance raised by another member of staff regarding a false allegation of theft in a previous employment'. Whilst the letter continued 'At the end of the meeting you were suspended on full pay to enable us to review all the facts of the case' this was not reflected in the minutes which record Mr Murdock having confirmed the decision to dismiss the claimant during their earlier meeting that day. The letter then set out: 'Considering all the facts of your case and given that during the investigatory meeting you did not deny supplying the information and offering to supply the Company with contact details of the alleged previous employer it has been decided that your employment within the company is now untenable. Therefore the decision has been reached to dismiss you from the business effective 14 ^th March 2016'. The claimant was not required to work the one week notice period given and was advised that to appeal the decision she should put her appeal in writing within five working days of receipt of the letter.

 

25.          On 8 March 2016 the claimant instructed solicitors to appeal her dismissal.

 

26.          On 21 March 2018 the respondent received a letter of appeal on behalf of the claimant from her solicitors dated 10 March 2016, postmarked 18 March 2016 which it rejected on the basis that it had been received outside the timescale specified in the dismissal letter to the claimant of five working days.

 

27.          The claimant presented her complaint to the Industrial Tribunal on 23 May 2015.

 

THE LAW RELEVANT TO LIABILITY

 

28.          Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

 

29.          Article 130(1) of the 1996 Order provides that 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 principle 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.

 

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

 

30.          Under Article 130(4) of the 1996 Order 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.

 

31.          It is well established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee's conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods  v  Jones [1983] ICR17, such that:-

 

1. The starting point should always be the words of Article 130(4).

 

2. In applying the Article 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 from 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 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.

 

32.          This approach was endorsed by the Court of appeal in Rogan V South Eastern Health and Social Care Trust [2009] NICA 47 and Dobbin V Citybus Limited [2008] NICA 42.

 

33.          In the context of a misconduct case Arnold J in British Home Stores  v Burchell [1980] ICR303 stated:

" What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds 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 circumstances be a reasonable conclusion".

 

34.          It is not for a tribunal in then determining whether or not dismissal was a fair sanction to ask whether a lesser sanction would have been reasonable, the question being whether or not dismissal was fair.

 

35.          The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal. The standard procedure consists of three steps; the employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting. Where the non-completion of the minimum procedure was wholly of mainly attributable to the failure by the employer or employee, an award of compensation may as provided under Article 17 of the Employment (Northern Ireland) Order 2003 be increased or reduced by between 10 and 50 per cent by the tribunal if considered just and equitable.

 

36.          The Labour Relations Agency Code of Practice on dealing with disciplinary and grievance issues sets out what constitutes good employment practice and reasonable behaviour for both employers and employees, it sets out at:

 

Paragraph 5 - Core principles of reasonable behaviour which the employer should work to in dealing with disciplinary issues including 'Inform employees of the complaint against them in advance of a meeting, and provide them with an opportunity to state their case before decisions are reached' and , 'Make sure that disciplinary action is not taken until the facts of the case have been established and the action is reasonable in the circumstances'.

 

Paragraph 9 - 'When a potential disciplinary matter arises, the employer should make necessary investigations to establish the facts promptly before memories of events fade. It is important to keep a written record for later reference. ...where an investigatory meeting is held solely to establish the facts of a case, it should be made clear to the employee involved that it is not a disciplinary meeting'.

 

Paragraph 15 - ' The first step in any formal process is to let the employee know in writing the nature of what they are alleged to have done wrong. The letter or note setting out the allegation can also be used to explain the basis for making the allegation. It is important that an employee is given sufficient information to understand the basis of the case against them. If applicable, it would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. There may be exceptional occasions where an employer may decide not to provide copies of witness statements, and possibly other documents and information, particularly if a witness has expressed genuine fears. While actual statements and the names of witnesses may sometimes be withheld, the employee should still know the substance of these statements, if not the author. If information on the basis of the allegation is not provided in writing, this should be conveyed orally to the employee before any meeting takes place....'

 

Paragraph 18 - ' At the meeting the employer should begin by restating the complaint against the employee and going through the evidence that has been gathered. The employee should be allowed to set out his/her case and answer any allegations that have been made. The employee should also be allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points about any information provided by witnesses....'

 

Paragraph 20 - 'Following the meeting, and after a period of reflection, the employer must decide whether the allegations are upheld and if disciplinary action is justified or not. Where it is decided that no action is justified the employee should be informed. Where it is decided that disciplinary action is justified the employer will need to consider what form this should take. Before making any decision the employer should take account of the employee's disciplinary and general record, length of service, actions taken in any previous similar case within the organisation, the explanations given by the employee and - most important of all - whether the severity of any intended disciplinary action is proportionate and reasonable in all the circumstances. In considering the circumstances employers should take account of, in particular, the extent to which standards have been breached'.

 

Paragraph 59 - ' Rules should be specific, clear and recorded in writing. They also need to be readily available to employees, for instance on a noticeboard or, in larger organisations, in a staff handbook or on the intranet. Management should take all reasonable steps to ensure that every employee knows and understands the rules, including those employees whose first language is not English or who have trouble reading. This is often best covered as part of an induction process indicating the status of such rules'.

 

SUBMISSIONS AND APPLYING THE LAW TO FACTS RELEVANT TO LIABILITY

 

37.          We accept the claimant's submissions that:

 

(1)        At no time when the claimant worked for the respondent was she supplied with a copy of her contract. We consider the claimant's evidence, supported by the evidence of Ms Livingstone and Ms Ingram that they as employees of the respondent had not received contracts in respect of their employment, set against Mrs Woods' evidence that a copy was handed to the claimant, as more probable on balance. Whilst the respondent may have displayed a copy of its disciplinary procedure on the noticeboard in its security room, as supported by the evidence of Ms Ingham, this was a secure room in which the claimant and other cleaners spent limited time and at no time was the procedure or notice board drawn to their attention. Whilst the LRA Code as submitted by the respondent suggests placement on a noticeboard to make rules readily available, it further provides at Paragraph 59 that Management should take all reasonable steps to ensure that every employee knows and understands these. On the evidence before us it is not apparent that the respondent took all reasonable steps so to ensure that the claimant was aware of its disciplinary rules and procedure; that the claimant should have been familiar with the steps involved thereunder and aware as suggested by Mrs Woods that the meeting with her was an investigatory one; nor forewarned before making the report that her actions could result in her dismissal.

 

(2)        The claimant was given no reason for her suspension and when she asked the reason for her suspension and proposed meeting she was informed that it was ' over..' and the Employee's name stated, which the claimant was unsure what was meant by. We consider that contrary to principles of reasonable behaviour set out under the LRA Code the claimant was not informed properly of the allegation and grievance against her in advance of the investigatory meeting resulting in her, as recorded in the minutes, not knowing why she was there. No written records were kept at the time of the claimant's report to Ms Russell or onward report to Mrs Woods nor does it appear that investigations were made into the matter by the respondent until some 5 weeks after the initial report was made. Mrs Woods did not made clear to the claimant that the meeting with her was investigatory rather than disciplinary.

 

(3)        In the meetings with Mrs Woods and Mr Murdock the claimant was not given an opportunity to explain or challenge questions put and was confronted with direct questions which Mrs Woods likened to cross examination and the claimant did not feel she was given time to properly respond to questions put.

 

(4)        The claimant, as supported by Ms Ingham's evidence and indeed the minutes of the meeting with Mrs Woods, was not aware of the grievance letter of 29 February 2016, mention only being made three quarters of the way through the meeting of a grievance having been raised. The claimant was not taken through the issues outlined in the grievance letter and was not given an opportunity to respond to these matters. Consequently the claimant was not given proper opportunity to state her case before a decision was reached.

 

38.          We are not persuaded that the decisions on the claimant's suspension and dismissal were made known to other members of the respondent's company before the claimant.

 

39.          The claimant did not at hearing actively pursue or present evidence in support of her feeling as to the real motivation behind her dismissal being a dislike of her standing up for the rights of cleaners, or indeed as suggested at hearing her fall at work, save the respondent's unexplained five week delay in acting upon the claimant's report to Ms Russell. We reject the respondent's argument that given the alleged real reason is not proven by the claimant that her claim should on this ground alone fail. We consider that the issue for determination from the claim form as currently drafted is whether the claimant was unfairly dismissed by the respondent by reason of misconduct and can be construed to include the assertion that her dismissal was not based on reasonable grounds following a reasonable investigation. It is clear from the respondent's response in which it resisted in sequence the unfair dismissal claim, then the 'element' of the claim that the reason was manufactured as an excuse to get rid of the claimant, and lastly resisted the claimant's alleged belief that the dismissal was linked to her standing up for rights of cleaners before contending overall that it had acted fairly and reasonably and followed correct procedures in the disciplinary case and dismissal of the claimant, that the respondent was fully aware of the case to be met.

 

40.          We accept that the respondent given the nature of its business in security engaged in a deep vetting process even for its cleaners due to the importance of retaining trust and confidence and that of its clients. We however found unreliable the evidence of Mrs Woods and Mr Murdock in particular as to the date of the report by the claimant to Ms Russell, the length of the disciplinary meeting and Mr Murdock having stepped out of the room to take time out of the disciplinary meeting to deliberate before making his decision.

 

41.          Whilst the respondent may have had procedures we are not of the view these were brought to the attention of the claimant, properly followed by the respondent or indeed matters overall handled professionally by it. We note in prior proceedings for the unrelated matter of the claimant attending work early outside agreed times, the respondent failed to make clear to the claimant the specific allegation and evidence against her before the disciplinary meeting on 12 February 2016 or thereafter aware of the outcome. In the course of the disciplinary hearing on 7 March 2016 Mr Murdock refused to discuss the prior warning upon which he was apparently building (' in light of ..') to deliver his decision in the current matter when the claimant said she did not get a prior warning. Mr Murdock instead hastily proceeded to deliver his decision to dismiss the claimant with no apparent time taken to r e-state the complaint against the claimant, go through the evidence gathered, or to allow the claimant to properly set out her case and answer allegations relied upon and question the evidence against her. We reject the submission that Mr Murdock in the way he conducted the disciplinary hearing gave the claimant every opportunity to explain.

 

42.          We accept that the respondent refused the claimant's appeal letter because it was received outside the time frame stipulated in the disciplinary outcome letter sent to her which we consider was within the band of reasonable responses test. T here was no breach of the statutory dismissal procedure in this case.

 

43.          We reject the respondent's submission that there has been no discernible breach in practice of the LRA Code for the reasons set out already above and in respect of which we consider that the respondent has acted unreasonably contrary to paragraphs 5, 9, 15, 18, 20 and 59 of the Code.

 

SUMMARY CONCLUSIONS

 

44.          We accept on balance that the reason for the claimant's dismissal related to her conduct and as such is a prima facie fair reason.

 

45.          The investigatory process is important to in particular enable an employer to discover relevant facts to enable him to reach a decision whether an offence has been committed. The proper conduct of the disciplinary process secures fairness to the employee by allowing an opportunity to respond to allegations made and even if misconduct is established allows for mitigating factors which may affect the appropriate sanction, to be put forward by the employee. It is for an employer to make appropriate enquiries and not to form their belief hastily or to act hastily. The way in which the investigatory and disciplinary procedure was overall handled by the respondent in this case meant that the claimant was unclear as to the nature and purpose of the investigatory meeting prior to it taking place and was not given proper opportunity to explain and defend herself. This is clearly contrary to the LRA Code and principles of fair play. We consider that whilst Mr Murdock might well have had a genuine belief that the claimant was guilty of misconduct we do not consider based on the matters set out above that at the point in time when the decision to dismiss was made that overall the respondent had conducted the investigatory process in a way, or adopted procedures, that fell within the reasonable band test. We consider Mr Murdock, at the point in time the decision to dismiss was made, did not accordingly have reasonable grounds upon which to sustain his belief following a reasonable investigation.

 

46.          We find that in the circumstances the respondent acted unreasonably in treating the misconduct alleged as a sufficient reason for dismissing the employee and find the dismissal unfair under Article 130 of the Employment Rights (Northern Ireland) Order 1996.

 

THE LAW RELEVANT TO REMEDY

 

47.          The starting point for the calculation of the compensatory award is Article 157(1) of the Employment Rights (Northern Ireland) Order 1996 Order which provides:

 

"(1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".

 

48.          The case of Dignity Funerals Limited v Bruce 2005 IRLR 189 (Court of Session), sets out the approach to be adopted by a tribunal in cases where a claimant claims that he is medically unfit to work because he was dismissed. The relevant principles from this decision are as follows:

 

(1)           The tribunal must consider two main questions: whether the claimant's dismissal was one of the causes of his wages loss and, if it was, what compensatory award would be just and equitable in the circumstances. The first question is one of fact; the second question is one of discretion.

 

(2)           If it can be shown that the depressive illness was caused by the dismissal and that this prevented the claimant from working, then a full award for loss of earnings should be made.

 

(3)           In contrast, if the dismissal is one of two or more concurrent causes of the claimant's loss it is up to the tribunal to decide on a just and equitable award which would be less than an award of the full loss of wage.

 

(4)           It is for the tribunal to find the extent to which the depression was caused by the dismissal and then to look at the extent to which this prevented the claimant from finding work.

 

49.          On the issue of contributory fault the tribunal must firstly, consider whether the claimant was guilty of blameworthy conduct that contributed to the employer's decision to dismiss; and, secondly, whether it is just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault. The test is whether the claimant's behaviour was perverse, foolish or 'bloody-minded' or unreasonable in the circumstances. If contributory fault is found both the compensatory and basic awards are reduced by the same percentage.

 

50.          The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.

 

51.          Article 33 of the Employment Rights (Northern Ireland) Order 1996 requires that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment not later than two months after the beginning of the employment.

 

52.          Under Article 27(3) of The Employment (Northern Ireland) Order 2003, the tribunal has a duty where it makes an award to the employee in respect of the claim to which the proceedings relate (for jurisdictions specified in Schedule 4 which include unfair dismissal) and when the proceedings were begun the employer was in breach of his duty to give the employee a written statement of particulars of employment to increase the award by a minimum of two week's pay (save where there are exceptional circumstances which would make an award or increase unjust or inequitable) and may, if it considers just and equitable in all the circumstances, increase the award by the higher amount instead equal to four week's pay.

 

 

 

 

FINDINGS RELEVANT TO REMEDY ONLY

 

53.          The effective date of termination (EDT) was 14 March 2016. The claimant was aged 64 at that date and had four full years' service. Her gross weekly pay was £150 and her net weekly pay £150.

 

54.          The c laimant we accept bore no malice toward the Employee and made the report to Ms Russell out of loyalty to the respondent and concern for herself as she was the next cleaner present in the workplace after the Employee's shift. The claimant was reluctant to reveal the Employee's name but only did so on the understanding the matter would not go further than Mrs Woods. In specifying that the account was 'hearsay' we accept the claimant's evidence that she meant that she did not know whether or not it was true. The claimant had not shared the account with anyone save the respondent. We accept that the claimant did not in her report to Ms Russell call the Employee a thief, volunteer unprompted a telephone number for the petrol station owner, nor venture the opinion that the respondent should dismiss the employee. We accept that Ms Russell asked the claimant could she get the garage owner's telephone number and the claimant replied yes. The claimant did not disclose nor was she asked when the alleged report was made to her or when the incident allegedly occurred. We do not consider that the claimant's behaviour was perverse, foolish or 'bloody-minded' or unreasonable in the circumstances and are not persuaded she was guilty of blameworthy conduct that contributed to the respondent's decision to dismiss.

 

55.          T he claimant without delay instructed solicitors to appeal on her behalf the decision to dismiss her. There is no evidence that the non-completion of an appeal procedure was substantially at the fault of the claimant.

 

56.          No medical evidence was presented in support of the claimant being unable to work due to ill-health by way of depression since the date of her dismissal attributable wholly, or in part, to the actions of the respondent in dismissing her.

 

57.          No job applications or attempt to find other work were made by the claimant between her dismissal and date of hearing.

 

58.          Following her dismissal the claimant qualified for and received pension credit of £63.26 per week. The claimant did not seek or receive any benefit recoupable under The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996, as amended.

 

59.          When proceedings were begun the respondent was in breach of its duty to give the claimant a written statement of particulars of employment. There is no evidence before the tribunal of exceptional circumstances which would make an award or increase unjust or inequitable under Article 27(3) of the 2003 Order.

 

60.          The claimant sought compensation only.

 

61.          The claimant sought a basic award of £900, compensatory award made up of immediate loss of 30 weeks' pay, future loss of 26 weeks and loss of statutory rights in the sum of £300.

 

62.          Taking into account the above:

 

63.          We are not persuaded that correct procedures would have made no difference to the outcome. We do not consider that a Polkey reduction is appropriate.

 

64.          We accept the respondent's contention that the claimant failed in her duty to mitigate loss having not considered or attempted to seek any other work but are mindful of the difficulty that may be faced in obtaining further employment at the claimant's age. We consider just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal so far as that loss is attributable to the respondent that a 50% deduction to the compensatory award is appropriate.

 

65.          Accordingly we award the following by way of remedy:

 

(1)   Basic Award - under Article 153 of the 1996 Order:-

 

£150 x 1.5 x 4 = £900

 

(2)   Compensatory award - under Article 157 of the 1996 Order:-

 

Loss of pay to date of hearing (30 weeks x £150) £4,500.00

Future loss (26 weeks x £150) £3,900.00

Loss of statutory industrial rights £ 300.00

£8,700.00

Less 50 % deduction for contributory fault -£4,350.00

Total compensatory award £4,350.00

 

Total Unfair Dismissal Compensation £5,250.00

 

(3) Failure to provide written statement of employment particulars.

 

In accordance with Article 27(3) of the 2003 Order, in the absence of exceptional circumstances which would make an award or increase unjust or inequitable the tribunal awards the claimant an amount equal to two week's pay, being £300. The tribunal does not consider it just and equitable to increase the award to the higher amount.

 

TOTAL AWARD £5,550.00

 

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

 

 

 

Employment Judge:

 

 

Date and place of hearing: 11 and 12 October 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: