Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 2547/15

 

 

 

CLAIMANT: Angela Prior

 

 

RESPONDENT: Peninsula Business Services Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that all the claims of the claimant are dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs E May

Mrs E Torrens

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr J Potts, Solicitor, of Peninsula Business Services Ltd.

 

Background

 

1. The respondent company provides services to various employers in the United Kingdom and the Republic of Ireland. It provides those services on either an advice-only basis, or on an indemnity basis which involves the respondent company covering any tribunal award made against an employer in certain circumstances. The latter service is an insurance service and attracts Financial Conduct Authority regulation within the UK.

 

2. The claimant had been employed for just over one year from 6 May 2014 to 30 July 2015 as a business development manager, selling the respondent's services to employers within Northern Ireland and within parts of the Republic of Ireland. That work involved explaining the respondent's services and getting the employers to enter into written contracts with the respondent company.

 

3. The claimant was summarily dismissed on 30 July 2015 following disciplinary proceedings. Her internal appeal was unsuccessful. She had remained as dismissed pending that appeal. The effective date of termination ('EDT') for the purposes of the legislation was therefore 30 July 2015.

 

4. She lodged her claim form online on 3 November 2015 over three months after the EDT. Apart from the time-issue, her claim form was oddly framed. For example, it stated in terms that the claim included a claim of sexual orientation discrimination where it was clear that the claimant was not alleging that she had been discriminated against because of any particular sexual orientation but rather because of her gender. The claim also stated in terms that she was claiming a redundancy payment when she had less than two years' service and would not have been entitled to any statutory redundancy payment. Furthermore, it was clear that that part of her claim was a claim of unfair dismissal. The claim also stated in terms that part of her claim involved ' arrears of pay' of £19,500.00 where it seems plain that that claim relates to an alleged failure to pay a bonus which was a breach of contract claim in respect of bonus rather than a claim in relation to arrears of pay. The claimant had received advice from the Belfast Unemployed Resource Centre.

 

5. Following a Case Management Discussion on 14 March 2016 and the provision of an agreed list of issues, it would appear that the claim was agreed between the parties as:-

 

"(i) A claim of unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996.

 

(ii) A claim of direct gender discrimination because of alleged treatment during the disciplinary process contrary to the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order').

 

(iii) A claim of direct disability discrimination because of alleged treatment during the disciplinary process contrary to the Disability Discrimination Act 1995 ('the 1995 Act').

 

(iv) A claim of direct discrimination in relation to the dismissal contrary to both the 1976 Order and the 1995 Act.

 

(v) A claim of breach of contract or unauthorised deduction of wages in relation to notice pay.

 

(vi) A claim of breach of contract in respect of commission."

 

6. There does not appear to have been any formal amendment of the claim form. However, that amendment appears to be implicit in the record of the Case Management Discussion.

 

7. The respondent denied all the claims and on 9 June 2016 raised a preliminary issue for the first time. At that point, the respondent alleged that the claims were all outside the relevant statutory time-limits and that, in the circumstances of the case, time should not be extended to give the tribunal statutory jurisdiction to consider any of the claims.

 

Procedure

 

8. As indicated, it was clear that the claims had been lodged more than three months after the EDT. In relation to the unfair dismissal claim, the breach of contract claim and the UDW claim, the question was then whether it had been reasonably practicable for the claimant to have lodged her claim within time. In relation to the two discrimination claims, there was an issue as to whether or not the issues covered by the claim extended beyond the EDT and whether the time-limit had been exceeded. If it had been exceeded, the question would be whether it would be just and equitable for the tribunal to extend the claim in the circumstances of the case.

 

9. The parties were directed to attend a Case Management Discussion at 10.00 am on 13 June 2016 before the main hearing which had been due to commence at 2.00 pm after reading time during which the panel would read the witness statements and to the extent necessary parts of the exchanged documentation. At that Case Management Discussion, the claimant stated that she had been acting under advice in lodging her claims when she did. She had been told that she had to wait for the statutory questionnaire reply before lodging her claim. However she did not wait for that reply before lodging her claim. She lodged that claim approximately one week before receiving the reply which was dated 9 November 2015.

 

10. After hearing those initial comments at the Case Management Discussion, the Vice President directed that the full panel would sit at 12.00 pm to hear a pre-hearing review to consider the time-limitation point.

 

11. At that pre-hearing review, the claimant's position changed significantly. Her position during that pre-hearing review was that she had always believed that time had only run from the date of the internal appeal against her dismissal because that internal appeal had been a complete re-hearing. That was the reason for her late claim and not, as she had earlier argued, a belief that she had to wait for the reply to the equality questionnaire.

 

12. The tribunal decided that the time-limitation points should be reserved until the end of the substantive hearing and determined at that point. The evidence in relation to all matters would only take one and a half days, in any event. The tribunal indicated to the parties that it was less likely that the time would be extended in relation to the unfair dismissal, breach of contract and unauthorised deduction from earnings claims because the statutory test was different. However, in relation to the discrimination claims, the subject-matter of the claims might go beyond the EDT. In any event, the evidence in relation to both the discrimination claims and the other claims would be the same. It seemed more appropriate to hear all the evidence and then to determine both the time-limitation points, and, if appropriate, the liability points, together.

 

Therefore the decision of the tribunal on the time-limitation points was reserved to this decision.

 

13. The witness statement procedure was used in this case. The parties were directed in the case-management process to exchange witness statements according to a specified timetable. Each witness was called in turn to swear or affirm to tell the truth and then to adopt his or her previously exchanged witness statement as his or her entire evidence-in-chief. Each witness then moved immediately into cross-examination and brief re-examination.

 

14. The claimant gave evidence on her own behalf in this matter. Two witnesses gave evidence on behalf of the respondent; ie Mr Tony Kerins, the claimant's line manager, who heard the initial disciplinary hearing and Mr Marc Ramsbottom, the Business Development Manager for Ireland, who heard the claimant's internal appeal.

 

15. The tribunal hearing was over two days from 13 - 14 June 2016. At the conclusion of the evidence the panel met in the afternoon of 14 June 2016 and reached its decision. This document is that decision.

Relevant law

Time-limits

16. A complaint of unfair dismissal must, under Article 145 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order'), be presented to the tribunal before the end of three months beginning with the EDT or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

 

17. Under Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 a claim of breach of contract must be presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within three months of the EDT, within such further period as the tribunal considers reasonable.

 

18. Under Article 55 of the 1996 Order a complaint of unlawful deduction from wages must be presented before the end of three months beginning with the date of payment of the wages from which a deduction was made or where the industrial tribunal is satisfied that it had not been reasonably practicable for a complaint to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

 

19. In relation to claims of unlawful disability discrimination and to claims of unlawful sex discrimination, a claim must be lodged before the end of the period of three months beginning with the act complained of but a tribunal may consider an out of time complaint if, in all the circumstances of the case, it considers it just and equitable to do so - see Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order') and Schedule 3 of the Disability Discrimination Act 1995 ('the 1995 Act').

 

20. In relation to the claims of unfair dismissal, breach of contract and unauthorised deduction from earnings and the ' reasonably practicable' test for extending time, the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 stated that the tribunal should ask whether it had been ' reasonably feasible' to present the claim in time.

 

With the passage of time since the unfair dismissal legislation was introduced and given the publicity provided to unfair dismissal cases, a claimant is unlikely to be able to show that it had not been reasonably practicable for him or her to present a claim in time because of ignorance of the right to claim for unfair dismissal. If the claimant ought reasonably to have known of his or her right to a claim, it would probably be held that it had been reasonably practicable to present a complaint with a time-limit, whether he or she in fact knew of the right or not - Porter v Bandridge  Ltd [1978] ICR 943 .

 

21. In relation to the discrimination claims and the ' just and equitable' test, it is clear that this is a wide discretion. Nevertheless the onus is on the claimant to convince the tribunal that it is just and equitable to extend time in the context of time-limits in employment cases which are meant to apply strictly.

 

22. There is no presumption in favour of an extension of time where a claim has been lodged beyond the three month statutory time-limit. The onus is on the claimant to convince the tribunal that it is just and equitable to extend time. Time-limits in employment cases are intended to apply strictly - Robertson v Bexley Community Centre [2003] IRLR 434. In that case, Lord Justice Auld stated:-

 

" It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. ... ."

 

23. In British Coal Corporation v Keeble [1997] IRLR 336, the Employment Appeal Tribunal suggested an industrial tribunal would be assisted by the factors mentioned in the Limitation Act which deals with the exercise of discretion by the courts in personal injury cases. That requires the court to consider the prejudice which each party would suffer as a result of the decision to be made and also to have regard to all the circumstances of the case and, in particular, to:-

 

"(a) the length of and reasons for the delay,

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay,

 

(c) the extent to which the party sued co-operated with any request for information,

 

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action, and

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

 

24. In Chohan v Derby Law Centre [2004] IRLR 685, the EAT summarised the legal principles in relation to an extension of time on just and equitable grounds. It stated that:-

 

"The use of a checklist under the Limitation Act is often useful.

 

Although it is not a requirement that a tribunal go through the checklist, failure to consider a significant factor will amount to an error of law." ]

 

Disability

 

25. Section (1) of the Disability Discrimination Act 1995 provides:-

 

"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities."

 

26. Paragraph 4(1) of Schedule 1 to the Act provides that an impairment is only to be taken as effecting the ability of the person to carry out normal day-to-day activities if it affects one of certain specified activities.

 

27. The onus is on the claimant to prove that, in the relevant period, when the alleged acts of discrimination took place, she had been disabled, in the manner alleged, for the purposes of the 1995 Act. In Ross  v Precision Industrial Services Limited and DuPont NICA 2005, Kerr LCJ stated at Paragraph 39:-

 

"The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant."

 

28. In Goodwin  v Patent Office [1999] IRLR 4 the EAT directed tribunals to answer four questions in determining whether an individual is disabled for the purposes of the 1995 Act:-

 

(a) Does the claimant have an impairment which is either mental or physical?

 

(b) Does the impairment affect the claimant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 and does it have an adverse effect?

 

(c) Is the adverse effect substantial?

 

(d) Is the adverse effect long-term?

 

Unfair dismissal

 

29. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

 

30. 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."

 

31. 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."

 

32. 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."

 

33. 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."

 

34. 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."

 

35. It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: ie whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.

 

Sex discrimination

 

36. At the relevant time, Article 3(2) of the 1976 Order provided:-

 

"3(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

 

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man; or

 

... ."

 

Breach of contract/unauthorised deduction from wages

 

37. The tribunal has jurisdiction to entertain a claim of breach of contract outstanding on the date of termination under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1984. The tribunal has jurisdiction to entertain a claim for unauthorised deduction from earnings under the Employment Rights (Northern Ireland) Order 1996.

 

Shifting balance of probabilities in discrimination cases

 

38. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

 

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

39. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

40. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

(75) The focus of the tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."

 

Relevant findings of fact

 

41. The claimant was employed by the respondent as a Business Development Manager, essentially a salesman, on 6 May 2014.

 

42. The letter setting out the formal details of the offer of employment was dated shortly thereafter on 7 May 2014. That letter specifically provided that the offer was conditional on the claimant's acceptance of various contractual documents including the standard contractual terms and the rules relating to the respondent's bonus scheme. The claimant accepted that offer on 9 May 2014 and signed the letter to that effect. The separate document setting out the terms and conditions of employment was also signed by the claimant on the same date.

 

43. The claimant then signed a copy of the bonus scheme rules and again confirmed her acceptance of those rules as part of her contract of employment. The rules provided that an employee who had been dismissed had no entitlement to bonus if they were not employed on the date when that bonus would normally have been paid. Bonuses were normally paid on pay day, ie the last working day at the end of each month. The claimant had been dismissed on 30 July 2015 and was not employed on 31 July 2015 when the bonus payment for that month would ordinarily have fallen due. She was also obviously not employed when subsequent bonus payments might have fallen due.

 

44. The claimant also signed and accepted the ' Code of Professional Conduct - Business Development Staff'. That code specifically said that breaches of the code could lead to dismissal. It included the following statements applicable where a Business Development Manager was visiting employers:-

 

"2.6 Will ensure that any question or queries which prospective or existing clients may have are correctly answered before any contract is signed (tribunal's emphasis) and will ensure that clients fully understand the commitments of the client's contract.

 

2.8 Will not cancel or rearrange any pre-booked appointments unless this is authorised by the Regional Sales Manager or the Group Sales Director."

 

The Code then provided that when signing a client's contract the BDM should:-

 

"4.1 Ensure that every section of the contract is completed truthfully and accurately." [Tribunal's emphasis]

 

45. The claimant received induction training and subsequent training after the commencement of her employment. The induction training took place in the Manchester headquarters building and lasted approximately 10 days. That is significant because the claimant told the tribunal on several occasions that she had been ' intimidated', ' frightened' and ' overwhelmed' at the prospect of entering that building on a later date to ask for documents to be scanned and e-mailed, or faxed, to the Dublin office when she had been requested to do so. Since she had already spent a significant period of time in that building as part of her training and since on the relevant day she had been in that building anyway attending a seminar, her evidence to that effect is not credible.

 

46. Part of the claimant's training related to FCA compliance. That part of the training was conducted by Gail Tuck, the respondent's compliance officer. That training was quite detailed, involving approximately 40 PowerPoint slides which formed the basis of Ms Tuck's training. It was then followed by a written test which the claimant passed.

 

47. The training highlighted the regulatory role of the FCA and the obvious risks posed to the respondent if any BDM took part in a non-compliant sale of an insurance-based product. The training stressed that the insurance indemnity was an optional part of the services provided to a client and that it could not be recommended by the BDM. The decision whether or not to take that insurance indemnity was a decision for the client. It warned specifically that the ' Insurance Declaration Box' on the bottom of the standard contract was to be signed by the client without exception when insurance was sold.

 

48. The claimant's general performance in her role was assessed on 10 December 2014 by Mr Paul Whitley, the respondent's Training and Development Officer. He observed meetings between the claimant and various clients. Her overall score was 65%.

 

49. Approximately one month later, on 13 January 2015, the claimant and other BDMs were informed of increased targets for business generated by potential customers attending seminars which had been organised by the respondent company. It is clear that those seminars, which were attended by potential clients, were regarded as an important part of generating business and an important part of the BDM's role.

 

50. The respondent followed up attendance at seminars with attempts to sell services to attendees. As a matter of policy and, as a matter of common sense, those attempts to sell services had to take place shortly after the seminar while matters were still fresh in attendees' minds. Basic registration forms detailing who attended the seminar and more detailed forms known as SATs were completed by the BDM and forwarded back to the relevant head office in either London or, in the claimant's case, Dublin for follow up by the telesales operator. The telesales operator who would then pass on sales leads to the BDM, such as the claimant, to complete. It was not in dispute that these forms were required urgently by the telesales operator and that the onus on providing those forms was on the individual BDM. The claimant alleged that other people did not provide the forms promptly. She produced no evidence to that effect. The respondent's witnesses were clear that this did not happen and that it would not have been tolerated. They stated that the registration forms and the SATs were either sent immediately or were faxed, or scanned and e-mailed, immediately with the original documents following at a later date. Given the process followed by the respondent, it does not seem logical, or at all likely, that other BDMs, who were dependant on bonuses, would have kept the forms to themselves for weeks as alleged by the claimant. In the absence of any evidence, other than the claimant's unsupported assertions, that this unlikely event could have occurred, the tribunal concludes that the forms were completed promptly by BDMs and returned back to the relevant head office equally promptly.

 

51. On 20 January 2015 and 30 June 2015, the claimant was involved in two separate RTAs. After both occasions, the claimant had indicated to the respondent that she was suffering no ill effects and was fit to return to work shortly thereafter. There had been no indication of any disability or other impediment to work.

 

52. On 28 May 2015, Ms Tuck observed the claimant during a meeting with the claimant. This was a Compliance Monitoring Visit. Ms Tuck noted a number of concerns. Following that meeting, she phoned Mr Kerins, the claimant's line manager, to voice those concerns. In summary, the claimant had been nervous during this meeting, had produced out of date documentation, had been disorganised, had not advised the potential client that the costs included VAT, and had not asked the client to read the ' key facts' before the signing the contract. Ms Tuck had had to intervene on one occasion to ensure compliance. It was therefore clear that the assistance of Ms Tuck had been required to ensure that the sale had been compliant with FCA rules.

 

53. The claimant was still marked at 70% but clearly Ms Tuck had been sufficiently concerned about her performance to speak to the client's line manager.

 

54. On Thursday 2 July 2015, the respondent organised a seminar in Lisburn. That took place in the Island Centre owned by the local district council. The claimant attempted to fax the registration forms and SATs from the Island Centre to the telesales operator in Dublin but the documents were blurred in transmission. The telesales operator, Mr Burns, e-mailed the claimant that afternoon asking for them to be re-sent.

 

55. The claimant and others went to Manchester that evening to attend the respondent's annual sales conference the next day. The claimant was staying in a hotel next door to the Peninsula building in which she had previously attended training and with which she was familiar. Mr Kerins asked the claimant on the morning of the next day, 3 July 2015, to return the SATs forms as requested. It is not in dispute that Mr Kerins had been contacted by the telesales staff in Dublin who were concerned that they still had not received the forms. Mr Kerins told the claimant to send the forms using the facilities in the Peninsula building. She was in the building anyway attending the sales conference.

 

56. The claimant had the relevant documentation with her possessions in the hotel. While placing her luggage in the store on checkout, she told a member of the hotel staff to fax the documentation and she left that documentation with the hotel staff. She did not, as she easily could have done, take the documentation with her to the Peninsula building next door and send it directly from there. She did not remain with the documentation in the hotel to ensure the documentation had been faxed as requested, and to preserve the privacy of the relevant data.

 

57. The claimant assured Mr Kerins that the documentation had been sent. However, the telesales staff confirmed at lunchtime that the documentation had still not been received. Mr Kerins had to go back to the claimant. He spoke to the claimant and accompanied her back to the hotel reception. It emerged that the documentation had not been faxed and in fact was still sitting on top of the claimant's luggage in the store room. The claimant then sent the documents on to the telesales department. She e-mailed the telesales operator stating:

 

"Sorry for the confusion this morning. The lady left the forms on top of the bag instead of sending them, they are on their way as we speak. Sorry again."

 

58. It is clear to the tribunal that the claimant did not follow a direct management instruction to send the documents, requested by the Dublin telesales team, direct from the Peninsula building. The claimant chose to leave the documents with an unknown member of hotel staff and chose not to ensure that they had been sent. It is also clear that there was a degree of urgency attached to the documents being received by the telesales department. The claimant, even at the tribunal hearing, does not appear to accept that she did anything wrong.

 

59. On the evening when the claimant arrived in Manchester, ie 2 July 2015, the claimant attended a dinner with the rest of the Irish sales team. In her witness statement she alleges that during that dinner Mr Kerins, when there was a conversation about childcare, stated:-

 

"Not the single mother card being played again." .

The claimant alleged that she was really upset and went to the bathroom and left straight afterwards.

 

60. That allegation was not made in the claimant's detailed claim form to the tribunal which contained four typed pages of details of the claim and which alleged not just sex discrimination by Mr Kerins but that Mr Kerins had conducted the investigation and disciplinary procedure at a later date in a hostile manner. In the very detailed questionnaire served by the claimant, also with the assistance of the Belfast Unemployed Resource Centre, there is no mention of this alleged remark. The 93 questions posed by the questionnaire include a specific question at Number 58:-

 

"Has Tony Kerins ever been investigated for discrimination or bullying behaviour in the past? Please provide details including all documentation in relation to these cases."

 

In the first part of the questionnaire where the claimant sets out in some considerable detail over several pages why she alleged that the respondent had discriminated against her contrary to the 1976 Order, she makes allegations of aggressive behaviour on the part of Mr Kerins. At no point does she make any allegation that he made the remark that she now alleges he made. The claimant's failure to make this allegation in either the claim form or in the equality questionnaire is very surprising. Given the level of detail in these documents, the claimant would have mentioned such an incident, if it had indeed occurred. Further, neither Mr Kerins nor Mr Ramsbottom who were in attendance at this dinner and who were sitting side by side throughout the dinner, were cross-examined by the claimant about this alleged remark or about the claimant's alleged upset. The tribunal had to ask these individuals for their comments on the allegation which the claimant appeared to have forgotten about. Both Mr Kerins and Mr Ramsbottom denied that any such allegation had been made. They further denied that the claimant had displayed any upset. No complaint was made by the claimant during or after the dinner. No grievance had been raised. The allegation is also inconsistent with Mr Kerins unchallenged evidence that he gave the claimant a training award in the course of her employment to encourage her where that award should in reality have gone to a male BDM operating in the west of Ireland. In the course of the disciplinary hearing which followed with Mr Kerins, although the claimant alleged to Mr Kerins that it "felt like a witch hunt", the claimant did not mention this alleged remark or that she had been upset during this dinner on 2 July 2015. In her internal appeal where she alleged unspecified ' discrimination' she made no mention of this alleged incident. In the course of the internal appeal hearing, the claimant made no mention of this alleged incident. The tribunal also notes that the claimant did not seek the attendance of any other attendee at the dinner as a witness in these proceedings. There was no request for a Witness Attendance Order.

 

61. It seems highly unlikely that an incident of such importance and of such relevance to the claimant's allegations could have slipped her mind until the preparation of the witness statement and that it had not been raised previously. Given the clear evidence of Mr Kerins and Mr Ramsbottom, the tribunal concludes on the balance of probabilities that this incident did not take place. Mr Kerins did not make the remark alleged by the claimant.

 

62. Another issue arose in relation to a contract which had been negotiated between the claimant as BDM and an engineering company. The claimant met with the owner of the engineering company in a hotel in Newry for a period of some hours. This was a cross-border company and it seems clear that there had been a lengthy and detailed discussion between the claimant and the owner of that company about the services which could be provided by the respondent. The claimant's evidence was that at the end of this lengthy meeting the owner of the engineering company had not been completely convinced but that he had been ' 90%' convinced to proceed with the contract. That was the claimant's sworn evidence to this tribunal. However, in cross-examination, the claimant accepted that she had told the telesales operator that it had been 80/20% agreed after the meeting. She had earlier, in the course of that cross-examination, confirmed that the owner of the engineering company had told her after the meeting that he was ' 99.9% sure'. In short, the claimant gave three different versions, ie 90%, 80/20% and 99.9%. This was all in the space of a few moments after swearing to her signed witness statement. While the exact percentage may not be a particularly important issue, the tribunal concludes that this is illustrative of a general lack of credibility in her evidence. The tribunal refers to its previous finding in relation to the allegation made by the claimant of a remark allegedly made by Mr Kerins on 2 July 2015 and to its finding in relation to the claimant's evidence that she had been ' frightened' to use the Peninsula Building. The tribunal concludes that the evidence of the claimant is not credible.

 

63. In any event, at the conclusion of that lengthy meeting, the claimant left the contract which she had already signed, and which she alleged the owner of the engineering company had already signed, with that individual. The name of the other contracting party, ie the engineering company, was left blank and could have been filled in, in any manner, by the client. The insurance box had not been completely filled in and the details of the contract fees had been left blank. It is also clear that the potential client still had questions about the contract. The potential client had attempted to contact the claimant after that meeting. It really does not matter for the purposes of this case how many times he tried to contact her or what attempts, if any, she had made to get back to him. The issue before the employer had been that the claimant had left a signed contract with a potential client with various parts blank and with the client unsure of how to complete the form, in contravention of internal guidance and of FCA Rules. The potential client had written to the claimant on 30 June 2015 stating:-

 

"I telephoned you on 15 ^th of May to seek your advice on completing the form. In the absence of clarification, we have tried to interpret issues of Company name, trading entity and staff quantity and the submission forms, to the best of our ability."

 

64. Ms Tuck, the respondent's compliance officer, wrote to the customer services officer on 16 July 2015 to state:-

 

"Did just try to ring you to discuss as there are regulatory issues here if the client chooses to complain to the Financial Ombudsman Service if they are an eligible complainant.

 

This is a cause for concern, a blank contract signed by a BDM to save them returning is not acceptable and non-compliant. Secondly, a contract should never be signed by a BDM in advance of a client signing it. There are enough people at the office who are authorised to sign a client's contract who could have done it for her if it had been sent back to us by the client."

 

Ms Tuck went on to state:-

 

"Have you alerted Tony Kerins because I raise some compliance concerns regarding Angela recently with Tony following a visit I did with Angela and this is a further one. Have you asked Angela why she was minded to leave a blank contract with a client that she had signed."

 

65. There appears to be a dispute between the parties as to whether or not the client had already signed the contract when it was left with him. It seems common case that the claimant had signed it on behalf of the respondent company and that large parts of the contract had been left blank. In relation to whether or not the potential client had signed the contract at that point at the end of the meeting, the tribunal concludes that it is highly unlikely that he would have done. Why would a potential client in such circumstances sign an essentially blank contract? Furthermore, it is clear that at a meeting on 21 July 2015, the claimant accepted that the prospective client had not signed the contract. It therefore seems much more likely than not that the only signature on the contract at the end of the meeting between the claimant and the potential client on 7 May 2015 was the claimant's signature on behalf of the respondent company.

 

66. The tribunal concludes that this was a serious matter in respect of which the respondent company had been rightly concerned.

 

67. A further matter arose. The claimant had sought to re-schedule appointments in Donegal in July 2015 so that she would have to make one trip rather than several trips. The claimant's initial position was that she had been contacted by one of the prospective clients and that he had asked for the timing of the appointment to be re-arranged. That, however, appears not to have been the case. In the course of the disciplinary meeting the claimant confirmed that she had contacted the client and suggested re-scheduling the meeting. She stated:-

 

"I sent a text message to the client and they understood."

 

The claimant appears to have notified a Mr Anthony Mills in the respondent organisation of the re-scheduling. However, it is equally clear that the Code of Professional Conduct which the claimant had signed stated specifically at Paragraph 2.8 that the BDM ' will not cancel or re-arrange any pre-booked appointments unless this is authorised by the Regional Sales Manager or Group Sales Director."

 

68. It was practice that re-scheduling appointments would have to be authorised in Ireland by the telemarketing manager or the group sales director or indeed by Mr Kerins. In any event, it is clear to the tribunal that re-scheduling business appointments was regarded as a serious issue by the respondent and that Mr Mills had no authority to agree re-scheduling an appointment. He did not suggest to the claimant that he had. It was also clear to the tribunal that the claimant's initial reaction to this matter was to state that the meeting had been re-scheduled at the request of the prospective client when it had in fact been re-scheduled at her request.

 

69. As a result of those three matters, Mr Kerins decided that he needed to meet with the claimant on 17 July 2015. There was a great deal of discussion at the tribunal about whether this meeting should have been classed as a formal investigatory meeting and whether the claimant should have been given notice of all three matters before that meeting. It is important for the tribunal to remember that this had not been a formal disciplinary meeting. It was a meeting between Mr Kerins and the claimant to enable Mr Kerins to find out what was going on. No disciplinary charges had been made or at that point were contemplated. Whether it was classed as an investigatory meeting or as a ' catch-up meeting' with a relatively new employee appears to the tribunal to be insignificant. In either event, the claimant would not have been entitled to representation and in either event it would not have formed part of the three step statutory disciplinary process.

 

70. This was not a formal minuted meeting. Mr Kerins kept some handwritten notes. Those handwritten notes were countersigned by the claimant at the end of the meeting. Those notes indicate that the contract with the engineering company had been discussed. In particular, Mr Kerins had prepared a question which was:-

 

"Why was the contract left unsigned by the client?"

 

Her response was:-

 

"To facilitate client."

 

Another prepared question was:-

 

"Why were no fees put in the calculation?"

 

The response was:-

 

"Error by Angela."

 

71. On 21 July 2015, Mr Kerins wrote to the claimant advising her that she was being suspended on contractual pay to allow an investigation to take place in relation to irregularities regarding the three issues, ie the forwarding of the SATs documents from Manchester, the re-scheduling of the Donegal appointment and the signing of the contract with the engineering company. The claimant was advised that suspension was not regarded as a disciplinary action. It was a holding measure. The claimant asserted during the tribunal that she had been forbidden contact with anyone in the respondent organisation. That appears not to be correct. She was told not to contact or to attempt to contact or influence anyone connected with the investigation or to discuss this matter with any other employee. On 23 July 2015, Mr Kerins wrote to the claimant. The letter required the claimant to attend a disciplinary hearing on the following Monday, 27 July 2015, in the Dublin office. The three charges were:-

 

"1. It is alleged that you met with a prospect - on 7 ^th of May 2015. Following this meeting, it is alleged that you departed their premises having left behind an Essential Service Contract which you had signed and dated but which had not been signed by the prospect. If proven, it is alleged that this would amount to a gross of breach of trust, that such an action would amount to a gross breach of regulatory authority rules, namely the Financial Conduct Authority.

 

2. It is alleged that on Friday the 3 ^rd of July 2015 you informed Tony Kerins that you had sent 'SATs forms' as required, but then later stated that they hadn't been sent as reception had lost them. Ultimately, it transpired that the SATs form were in your own bag. If proven without reasonable explanation, it is alleged that this would amount to deliberately misleading the company which in turn could cause the company to lose faith in your integrity.

 

3. It is further alleged that you have a case to answer in relation to actions surrounding the re-scheduling of the appointment with ________________ in Donegal on 23 ^rd of July."

 

The letter stated that:-

 

"If these allegations were substantiated, we would regard them as gross misconduct. If you are unable to provide a satisfactory explanation, your employment may be terminated without notice."

 

72. Again the claimant alleged that she had been instructed not to contact any one in the respondent's organisation. That was clearly not correct. The letter indicated only that she was not to contact or attempt to influence anyone connected with the investigation or to discuss ' this matter' with any other employee.

 

73. On 24 July 2015 the claimant notified the respondent that she had been signed off sick some days previously on 20 July 2015. The sick note referred to work-related stress and knee pain.

 

74. On 24 July 2015, Mr Kerins wrote again to the claimant re-scheduling the meetings to take place on Wednesday 29 July 2015 at 10.00 am. He stated that the meeting would take place in the claimant's home or a nearby hotel or in the Belfast Office as a result of the travel difficulties the claimant outlined in relation to her knee pain.

 

75. On 27 July 2015 the claimant confirmed her attendance at the Belfast Office at 10.00 am. In doing so, she did not ask for a further postponement and did not state that she was unable to attend and did not ask for assistance in obtaining a representative from within the company.

 

76. The disciplinary hearing was conducted by Mr Kerins with a note taker. The claimant argued that it had been improper for Mr Kerins to have undertaken the disciplinary hearing having already conducted the meeting on 17 July 2015. While it might have been advisable for different people to have been involved, there was no evidence before the tribunal that Mr Kerins had made up his mind upon either liability or penalty in relation to the disciplinary charges which had emerged and the tribunal concludes that his participation of itself did not make this procedure unfair.

 

77. In any event, at the commencement of the disciplinary meeting, Mr Kerins noted that the claimant was unrepresented. The claimant said that there was no trade union representative because the timescale was too tight. Mr Kerins asked whether she was happy to continue and her response was ambivalent. She stated:-

 

"Do not want to put anyone out. Would prefer a trade union rep."

 

Mr Kerins stated that a reasonable timeframe had been provided and the hearing continued.

 

78. In relation to the SATs, there was a disagreement between Mr Kerins and the claimant about whether the claimant had asked Mr Kerins at 9.55 am or earlier that morning to send the SATs to Dublin. The tribunal does not regard this issue as significant. It seems clear that the claimant accepted that she had been asked early in the morning by Mr Kerins to send the forms to Dublin. The claimant also accepted that she had given the documents to hotel staff to fax to Dublin.

 

79. The claimant stated at one point:-

 

"I want a rep here do not feel fairly treated."

 

The claimant stated again that she wanted to re-schedule and to get a representative. That request was refused.

 

80. In relation to the re-scheduling of the Donegal appointment, Mr Kerins stated the re-scheduling could only be authorised by three individuals, including himself. The claimant stated that she thought Anthony Mills could authorise it. The claimant appeared to accept that this had not been the case. At this point the claimant changed her original version of events in relation to the re-scheduling of the appointment and confirmed that she had asked the client to re-schedule.

 

81. In relation to the contract with the engineering company, the claimant alleged that it was common practice to leave contracts with clients. At no point did she say that it was common practice, or even advisable, to leave signed and partially blank contracts with clients. Even at the tribunal hearing the claimant did not appear to appreciate the difference.

 

82. Mr Kerins referred to the relevant contract and pointed out that the FCA rules required the insurance box to be completed and for details in relation to the insurance to be made clear to the client. When Mr Kerins asked the claimant whether the client had got all the information the claimant replied that the client had received the documents. However the tribunal concludes that the respondent had been entitled to conclude that there were matters left unclear since the client had tried to contact the claimant and had eventually written to the claimant pointing out that he had questions unanswered.

 

83. On 30 July 2015, Mr Kerins wrote to the claimant upholding the three charges. He stated that:-

 

"By leaving the client with a blank contract you were exposing the company to an extremely vulnerable position. The client could have detailed any terms in the contract you left with him and sought to hold Peninsula accountable for same. Furthermore your actions in respect of Irwell Insurance was a serious breach of Financial Conduct Authority Rules and could jeopardise our standing as an agent for this insurance product."

 

84. In relation to the SATs he stated:-

 

"I cannot accept that being flustered justifies misleading your manager in the circumstances. You had received a reasonable management instruction to send the forms and you expressly and knowingly stated that they had been sent in circumstances where they had not been sent. I can only conclude that you had deliberately misled rather than explaining that the task had not been completed as requested. The employment relationship is based upon trust and confidence and when one party deliberately misleads another this trust is broken."

 

85. In relation to re-scheduling appointments he stated:-

 

"It is most concerning that you are unaware of the internal process for re-scheduling of appointments. I am particularly concerned that you initially denied 'calling' the client and held this view in circumstances when you had texted the client. It is my view that you are placing allowance on the word 'calling' to obviate admitting that you had made initial contact with the client, particularly when you consider that you had previously stated that the client had contacted you first."

 

86. The claimant was summarily dismissed. She was advised that she had a right to appeal.

 

87. On 3 August 2015 the claimant wrote to Mr Ramsbottom with an appeal. She stated that she did not feel that the disciplinary hearing had been fair; that she had not received enough notice of the meeting to enable her to arrange representation and had been refused a re-scheduling. She stated that she had been unfit mentally at the time and had been visibly upset. She stated that she had not received notes of the original investigatory meeting. However she did not explain how these notes would have been in any way relevant or of assistance to either party. She challenged the fairness of the dismissal.

 

88. The appeal hearing was arranged for 11 August 2015. Mr Ramsbottom stated that he could arrange it at a hotel or meeting room or in the Belfast Office. That meeting was eventually confirmed at a hotel near Lisburn.

 

89. The claimant alleged that her post had been advertised before the appeal had been heard. However, having the evidence the tribunal is satisfied that this was not the claimant's post. If the appeal had been successful the tribunal concludes that the claimant would have been reinstated and would have worked alongside the other staff, including the new appointment. The tribunal is also satisfied that Mr Ramsbottom had been entitled to reach the same conclusion.

 

90. On 5 August 2015, the Belfast Unemployed Resource Centre notified the respondent that a Ms Fleck would be appearing as the claimant's representative. She asked for various documents, including the minutes of the disciplinary hearing and a copy of the Company Handbook. The minutes of the disciplinary hearing and the Handbook were provided. It would appear to the tribunal that no documents were withheld which could have reasonably influenced the result or been of any assistance whatsoever to the claimant.

 

91. As a result of Ms Fleck's request, Mr Ramsbottom agreed to postpone the meeting to facilitate her availability and the meeting was re-arranged for 14 August 2015.

 

92. During the appeal hearing, the claimant criticised the meeting on 17 July 2015 and the disciplinary meeting. She stated that they had been conducted unfairly and in a hostile manner. She stated that she had been visibly upset and that the disciplinary meeting had not been reconvened when it should have been reconvened. She criticised what she regarded as the lack of any investigation. The claimant alleged that what she had been criticised for in terms of FCA compliance was in fact common practice. No corroborative evidence was produced that this had been in fact common practice. The claimant simply made unsupported assertions.

 

93. The appeal meeting appears to have been relatively lengthy.

 

94. In relation to the SATs form, there was no dispute that the claimant had been asked to forward the forms to Dublin and that she had left them with the hotel reception staff to forward to Dublin. There was no dispute that they had not been forwarded and that she had not sought to use the facilities in the Peninsula Headquarters. There was no dispute that she had told Mr Kerins that they had in fact been forwarded. The claimant stated that she had never tried to mislead the company. She alleged, but again with no corroborative evidence, that other staff had delayed submitting SATs forms. The tribunal concludes that the respondent was entitled to conclude that this was incorrect. There was no acceptance or acknowledgement from the claimant she had failed to comply with a reasonable management instruction in what was, in the context of the respondent's business, a relatively important matter.

 

95. In relation to the allegation of re-scheduling the Donegal meeting, the claimant stated that she did not feel she had done anything wrong. She stated that she thought Anthony Mills could re-schedule appointments.

 

96. In relation to the contract left with the owner of the engineering company, she stated that she had been told at the end of the meeting by the prospective client that the contract was 90% agreed. She alleged that she had been told during training that it was in order to leave the contract with the client. Again she did not address the point and does not appear to have said that she had been told during training that it was in order to leave a partially completed and signed contract with the client. If she had said that, the respondent would have been entitled to disbelieve that assertion, which appears to the tribunal to be fundamentally unlikely. Crucially, the claimant admitted that the contract fee section had not been filled in. However, she went on to state she never thought she was doing anything wrong. That was in a situation where, even on her own description of events, the name of one contracting party was blank, the company had signed the contract and the insurance box had not been fully completed. She criticised management and stated she felt she was singled out. She stated it was minor misconduct ' at most'. She stated the process had been predetermined and ' discriminatory'. The claimant was quite explicit in alleging animosity between the claimant and Mr Kerins. She alleged that Mr Kerins had been ' derogatory about a cousin who killed himself'. That seems an extraordinary allegation and particularly odd given that in the context of an allegation about discrimination against a female single parent and in the context of an appeal hearing, the claimant apparently did not remember an alleged remark made by Mr Kerins about ' playing the single mother card' which had allegedly been made at the relevant time in front of other employees.

 

97. Following that appeal hearing, Mr Ramsbottom met Mr Anthony Mills on 31 August 2015. Mr Mills was the Telesales Manager at the relevant times and was not part of the claimant's line management structure. He advised Mr Ramsbottom that the SATs forms in relation to the seminar in Lisburn were ' like gold dust', in that they contained vital information about those who attended the seminar and could form the basis of securing follow-up appointments for the BDM. He stated that it was the job of the BDM to ensure that each delegate to the seminar completed the SATs and also that it was up to the BDM to send them into the office. That was usually done by scanning the forms with their iPhone on the same day. The claimant had been issued with a work iPhone at all relevant times.

 

98. Mr Mills confirmed that BDMs were not allowed to ring clients themselves to try and re-schedule appointments. He stated that the claimant would have known this. He stated re-scheduling appointments was strictly controlled and required the approval of the UK Telesales Manager.

 

99. Mr Mills stated that all contracts had to be completed in full by the BDM before signature by the client and that it was not acceptable to sign blank contracts or sign incomplete contracts where someone could write in their own contractual terms.

 

100. Mr Ramsbottom then interviewed Mr Kerins on 2 September 2015. Mr Kerins stated that the issue in relation to the contract was enough on its own to justify dismissal. The other two issues, ie the SATs and the re-scheduling of appointments, would not on their own be worthy of dismissal but might have merited a disciplinary sanction.

 

101. Mr Ramsbottom interviewed, by phone, Ms Tuck the Group Compliance Manager. Ms Tuck stated that in her compliance visit with the claimant on 20 May 2015 she felt the claimant had been very disorganised and had failed to advised the client that the insurance was optional. Ms Tuck stated she had to correct some of the errors during the course of the meeting. She had held a informative session with the claimant after the meeting. In relation to the contract with the engineering company she felt it had been left virtually blank with only the monthly payment details filled in. The client had to fill in his own company details and a section relating to contract fees had not been filled in. Ms Tuck stated this could easily have given rise to a complaint to the FCA. Ms Tuck explained the training to BDMs.

 

102. On 8 September 2015, Mr Ramsbottom wrote to the claimant with his decision on the appeal. He had rejected the appeal. In a detailed 13-page decision he set out the basis of his decision.

 

103. Since the claimant and her representative argued that the disciplinary hearing by Mr Kerins on 29 July 2015 had been flawed and that they argued that Mr Kerins should not have heard the disciplinary process and that he should have reconvened the disciplinary process to allow representation to be obtained, Mr Ramsbottom decided to hear the appeal as a complete re-hearing.

 

104. In relation to the contract with the engineering company he stated that he was satisfied that the issue of signing an incomplete contract and leaving it for the client to sign was a serious omission on the claimant's part and that it was a breach of the regulatory framework governing the sale of insurance products. In relation to the SATs forms he stated that the claimant's argument that this had simply been a matter of miscommunication was not supported by the facts. It was clear that Mr Kerins had issued an instruction to fax the SATs from the Peninsula building and that the claimant had disregarded that instruction and had asked someone in hotel reception to do it instead. She had failed to inform Mr Kerins of that decision.

 

105. In relation to the re-scheduling of appointments, he concluded that it was clear that the claimant knew that she was not authorised to contact the client and to try to re-schedule the appointment without approval and that it was clear on the evidence that she did attempt to do so.

 

106. Mr Ramsbottom concluded that the second and third charges on their own would not have justified dismissal and possibly could have been dealt with by a lower disciplinary penalty. However, the issues relating to the contract were serious and he upheld the decision to summarily dismiss the claimant.

 

107. In relation to the claim for bonuses, he concluded that the claimant was aware that the rules of the bonus scheme provided that where an employee had been dismissed that employee lost entitlement to any bonus which might have fallen due at any stage in the future following their dismissal. He also considered the question about outstanding holiday pay and concluded that all holidays had been paid.

 

Decision

 

Time-limitation

 

108. The tribunal concludes that the claims for unfair dismissal and breach of contract/ unauthorised deduction from earnings were lodged out of time. The date of dismissal, ie the effective date of termination, was 30 July 2015 and the date on which the bonus was due was 31 July 2015. The claim was not lodged until 3 November 2015, when it was lodged online.

 

109. The claimant in the course of the Case Management Discussion at 10.00 am on the first day of the hearing stated, when she was asked why her claim had been late, that she been told that she had to wait for the reply to the equality questionnaire. In the pre-hearing review at 12.00 pm, that position changed and the claimant stated that in fact she had felt all along that her claim had been in time because time should only run from the date of the internal appeal hearing, since the appeal was a re-hearing.

 

110. The tribunal does not accept that the claimant genuinely felt, at any stage, that the time-limit did not run until after the appeal hearing. That was very much an afterthought once she had time to think about her position between 10.00 am and 12.00 pm on the first day of the hearing.

 

111. The equality questionnaire reply was furnished on 9 November 2015. In any event, the questionnaire was long and detailed. It is not surprising that Mr Ramsbottom took some time to furnish a reply.

 

112. In any event, the matters raised in the equality questionnaire could have had no bearing on any potential claim for unfair dismissal or any potential claim for breach of contract/unauthorised deduction from earnings. Furthermore, the claimant was an experienced employee. As far as her employment with the respondent was concerned she had acted for over one year in selling employment law services to employers. She had undergone a training course. She must have had at least a basic knowledge of employment law including, at the very least, the existence of employment tribunals and of the applicability of time-limits. She gave evidence to the tribunal that she had sought advice from various sources and had eventually spoken to somebody in the Belfast Unemployed Resource Centre. All sources of advices had been open to her. She could have sought advice the Citizens Advice Bureau, from the Law Centre, from the Pro Bono Unit operated by the Law Centre or indeed the Pro Bono Unit operated from the Employment Lawyers Group. She chose, for whatever reason, to delay lodging her claim until the three month time-limit had expired.

 

113. The tribunal cannot conclude that it had in any way not been reasonably practicable or reasonably feasible for the claimant to have lodged these claims within time. The tribunal can therefore not extend the time-limit and it has no statutory jurisdiction to determine those claims.

 

114. Insofar as the claims in relation to unlawful discrimination are concerned, the claim in respect of disability discrimination must, in any event, be dismissed. The claimant produced no evidence whatsoever to establish that at any of the relevant times she had been disabled for the purposes of the 1995 Act. She did not address the statutory tests. Her adviser did not address the statutory tests. She produced GP notes stating that she suffered from knee pain and workplace stress. That evidence is entirely insufficient to meet the statutory tests and the claimant would have been made aware during the case-management process of the need to produce specific medical evidence. The onus of proof was on the claimant to establish that she had been disabled at the relevant time for the purposes of the Act. She had failed to do so and that claim must be dismissed.

 

115. Insofar as the claim for unlawful sex discrimination is concerned, the claim is badly articulated. It started off as a claim of unlawful discrimination on the grounds of sexual orientation which the claimant and her adviser must have known was entirely incorrect. It is possible, however, that the claim of unlawful sex discrimination relates to a continuing act up to and including the appeal hearing. On that basis the tribunal has decided to give the claimant the benefit of the doubt and to regard that claim as potentially within time as a potential series of continuing discrimination.

 

Liability

 

116. In relation to the claim of unfair dismissal, which the tribunal has ruled is out of time and in respect of which the tribunal has no statutory jurisdiction, the tribunal would have determined in any event that even if it had jurisdiction it would have dismissed that claim. It is clear that the reason for dismissal was misconduct and no other reason. The appeal hearing was a complete re-hearing and must be taken to have remedied any defects which could be argued to have taken place during the disciplinary hearing before Mr Kerins. There had been a reasonable investigation. The full re-hearing on appeal by Mr Ramsbottom was thorough, detailed and fair. He took the view that the claimant, even at the appeal hearing, had failed to show any recognition of the seriousness of her errors and had failed to show any sense of contrition. Having observed the claimant at this tribunal hearing, the tribunal can only conclude that this was a reaction that Mr Ramsbottom was entitled to take. The claimant sought to attribute blame to everyone else, ie to other employees to her employer, to her training and to argue that it was all a campaign of victimisation. However, the reality was that the claimant had committed one serious error in providing a partly uncompleted contract, signed by her, to the potential contractor to take away and potentially to complete as he wished. That was in breach of the FCA Guidelines and furthermore in breach of any commonly understood way of doing business. Mr Ramsbottom reached a reasonable belief in guilt.

 

117. There were two other matters which on their own might not have warranted dismissal but which were serious matters taken together with the contractual matter. Those were the failure to respond to a reasonable management instruction from Mr Kerins in relation to the SATs and the attempt to re-schedule appointments without authority. Again Mr Ramsbottom reached a reasonable belief in guilt.

 

118. Given the relatively short length of her employment and given her failure to absorb and to act on the training she had received only one year previously, the decision to summarily dismiss the claimant was a decision which any reasonable employer would have been entitled to reach. While it could be argued that another employer, on a different day, might have sent the claimant for further training, that is not the point. The decision to summarily dismiss the claimant was within the band of reasonable responses open to an employer and therefore fair for the purposes of the 1996 Order.

 

119. As far as the claim of unlawful sex discrimination is concerned, the tribunal rejects that claim. It was up to the claimant to establish a prima facie case before the burden of proof shifts to the respondent. The claimant has not established that prima facie case.

 

120. The tribunal concludes, on the balance of probabilities, that the serious allegation made by the claimant against Mr Kerins that he, during the dinner of 2 July 2015, had taken too much drink and had made an adverse comment about single parents was untrue. If it had been otherwise it would have been mentioned earlier; at the very latest in the claim form on the equality questionnaire. Furthermore, the claimant made another serious allegation in the course of the internal appeal hearing, that Mr Kerins had commented adversely on the claimant's cousin who had committed suicide. This was an allegation which was only made once. It was not repeated in the claim form, in the equality questionnaire or indeed in the claimant's witness statement.

 

121. As indicated above, the claimant's evidence was less than credible. Her assertions that other people were treated differently in relation to work supervision, the provision of SATs, the making of appointments or in relation to contracts were entirely unsupported by any corrobative evidence. If any of this had been true, the claimant could have sought the attendance of witnesses, if necessary by the use of a Witness Attendance Order, and she chose not to do so. It is not sufficient to shift the burden of proof in this matter for the claimant simply to assert something without any evidence whatsoever to back it up. That is particularly the case where what the claimant asserts is inherently unlikely and where it is denied in convincing testimony from the respondent. For example, the assertion that SATs did not matter and were ignored for weeks by other BDMs or the assertion that a prospective client had signed a partially blank contract.

 

122. The claim of unlawful discrimination of the grounds of gender is therefore dismissed.

 

123. Even if the claim in respect of breach of contract/unauthorised deduction from earnings had been within time, the tribunal would have dismissed that claim. The claim in respect of bonuses; both the bonus allegedly due on 31 July 2015 and the bonuses potentially due at stages thereafter, were subject to the bonus rules which form which part of the claimant's contract of employment. The claimant had signed up to those rules. Those rules clearly provided that entitlement to any such bonuses ceased after dismissal. There can be no contractual entitlement in such circumstances to bonuses.

 

124. There was no evidence in relation to any other claims.

 

125. All the claimant's claims are therefore dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 13 - 14 June 2016, Belfast

 

 

Date decision recorded in register and issued to parties: