Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2553/15

 

 

 

CLAIMANT: Stephen Woods

 

 

RESPONDENT: Geoff Baird, t/a Craigmore

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed and ordinarily unfairly dismissed by the respondent. The tribunal awards to the claimant compensation of £18,210.54.

 

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Greene

Members: Ms M Mulligan

Mr I Foster

 

Appearances:

The claimant appeared in person.

The respondent appeared in person on 1 March 2016 and was represented by Mr Sean Doherty, of counsel, instructed by McCorkell Legal and Commercial, at the hearing on 5 April 2016.

 

SOURCES OF EVIDENCE

 

1. The tribunal received evidence, on behalf of the respondent, from David Nicholson and Geoffrey Baird and from the claimant himself. The tribunal received four bundles of documents amounting to 53 pages, a witness statement and closing submissions from the respondent.

 

THE CLAIM AND DEFENCE

 

2. The claimant claimed that he was unfairly dismissed. The respondent denied the claimant's claim.

 

THE ISSUES

 

3. The issues for determination were:-

 

(1) Whether the claimant was unfairly dismissed by the respondent according to the ordinary principles of unfair dismissal law.

 

(2) Whether the claimant was automatically unfairly dismissed.

 

(3) If the claimant were automatically unfairly dismissed should there be an uplift and, if so, at what percentage?

 

(4) If the claimant is successful in his claim for unfair dismissal, what is the appropriate remedy.

 

FINDINGS OF FACT

 

4. (1) The claimant was born on 9 January 1972.

 

(2) The claimant worked for the respondent from 12 September 2012 until 9 October 2015 as a showroom office assistant, which included sales duties.

 

(3) The respondent has an agency agreement with BOC Gases Ireland Limited (BOC) and is also a direct supplier of gas to customers.

 

(4) The claimant earned, per week, £300.00 gross and £263.34 net.

 

(5) Customers would enter the premises of the respondent if they were interested in getting gas for their homes. The manner in which the procedure was supposed to work was that the sales person, to whom they spoke, would put them in touch by telephone with BOC. If the customer agreed with BOC to a supply of gas, BOC would send through, by email, the appropriate documentation which was to be signed by the customer and then returned to BOC and that authorised the supply of gas to the customer.

 

(6) On 9 September 2015 Denise McReynolds attended at the respondent's premises with a view to entering into a hire agreement for the supply of gas and was seen by the claimant. BOC agreed that she was to be supplied with gas following the normal practice of contact with them directly by telephone. The forms were then sent by email at around 3.24 pm on 9 September 2015.

 

(7) It appears that around 3.00 pm on 9 September 2015 the respondent provided bottled gas to Denise McReynolds on foot of approval from BOC. The paperwork in relation to the hire agreement, requiring her signature to authorise the supply of gas, was not sent until 3.24 pm on that date.

 

(8) Paul Black, from BOC, had set up a new account for Denise McReynolds and had told the claimant to supply her with the gas in advance of the documentation being sent through by BOC. This was not challenged by the respondent and there was a number of documents that seemed to confirm this account.

 

(9) The claimant alleges that Denise McReynolds had left the respondent's premises with her bottled gas and that after she had left the premises he had signed her name on the hire agreement document, in keeping with, what he alleged, was the practice within the respondent business.

 

(10) The tribunal accepts that the customer had left before the documentation came through for her signature.

 

(11) The tribunal also accepts, that after the customer had left, that the claimant had tried unsuccessfully to contact her by telephone in order to give her a copy of the documentation. The claimant had previously signed the documentation which apparently was used to authorise BOC to deduct money from Ms McReynold's bank account.

 

(12) The claimant denies that he had ever been trained in the procedure for carrying out this type of transaction and that it was common practice within the respondent business for staff members to sign the names of customers on delivery notes, which contention was not seriously challenged. He also asserted that it was common practice for the bank mandates, or the document that was to be sent to the bank, to be signed by members of staff in the absence of the customer and without the customer's authorisation.

 

(13) The claimant was unable to give examples of other bank mandates or documents having been signed by other members of staff instead of the appropriate customer. However, this is perhaps understandable if the tribunal accepts the claimant's contention that this was common practice. If the practice described by the claimant were correct there would not be any need or reason why he would remember any other mandate or documentation in particular.

 

(14) The parties did not produce to the tribunal a bank mandate as such. A hire agreement was produced which recorded the customer or hirer's name as Miss Denise McReynolds. It is signed in her name and dated 9 September 2015. However the hire agreement states in capital letters "NO MONEY WILL BE TAKEN BY US UNILATERALLY FROM YOUR ACCOUNT UNLESS YOU HAVE COMPLETED THE DIRECT DEBIT MANDATE". An email from Mr Black from BOC of 9 September 2015 at 3.24 pm implied that there were two documents, the hire agreement and the direct debit mandate. However no direct debit mandate was ever produced to the tribunal, nor does the hire agreement refer to itself or any part of it as a direct debit mandate.

 

(15) On 2 October 2015 Ms Denise McReynolds' partner, Colin Copeland, came to the respondent's premises and spoke to the claimant about the signature of Denise McReynolds. This arose by reason apparently of queries raised by Ms McReynolds' bank as to the authenticity of her signature on the hire agreement. The claimant immediately admitted that he had signed the document. It would appear that BOC had attempted to use the hire agreement to authorise payment from Ms McReynolds' bank.

 

(16) Colin Copeland then met Mr Nicholson, the manager of the respondent business, as he was leaving Craigmore premises and complained about the signature being signed by the claimant, in his partner's name, and explained that the bank had queried this. Mr Nicholson explained to Mr Copeland that this was a serious matter and that it would be fully investigated.

 

(17) Mr Nicholson did not ask Mr Copeland to prepare a statement of his complaint or request that his partner, Denise McReynolds, should make a statement. Nor did he make any record of the conversation or of the complaint.

 

(18) Mr Nicholson told the tribunal that he had received the complaint about 4.00 pm on 2 October 2015 and that he told Mr Baird, the owner of the respondent business, at 5.30 pm on the same day by telephone. Mr Baird did not make a note of the complaint or the issue either nor did he ask Mr Nicholson to make a note of it.

 

(19) On 5 October 2015 the claimant was called into Mr Baird's office. Mr David Nicholson was present. The claimant was told that he had signed a customer's document and that BOC did not want him working on any further BOC work. Mr Baird continued that if could not do that work, there would not be a job for him.

 

(20) The claimant maintained that he had not done anything wrong and that he was doing what he had been shown to him from the start of his employment with the respondent.

 

(21) At the meeting on 5 October 2015 Mr Baird indicated to the claimant that he was considering dismissing him or taking disciplinary action against him. There was not any minute of this meeting.

 

(22) On 6 October 2015 Mr Baird approached the claimant to do work for BOC for another customer. He had previously sought the agreement of BOC in order that the claimant could do that work.

 

(23) At 5.30 pm on 8 October 2015 Mr Baird handed the claimant a letter as he was leaving work to go home. The letter informed him that a disciplinary meeting was to take place on 9 October 2015 at 11.00 am to consider whether disciplinary action should be considered against the claimant in regard to gross misconduct. The alleged type of gross misconduct or any details of the offence were not included in the letter nor was there any supporting documentation provided to the claimant.

 

(24) The claimant was not provided with documentation which indicated the basis for the statement that he was suspected of having committed an act of gross misconduct or the ground or grounds for so believing.

 

(25) The claimant was scheduled to work from 8.30 am on 9 October 2015 and therefore had difficulty in securing accompaniment at the disciplinary meeting.

 

(26) On 9 October 2015 the claimant attended at a meeting. Present were Mr Geoff Baird and Mr David Nicholson. There is not a minute of this meeting. A sheet of paper was produced by the respondent with some handwriting on it but it is clearly not a minute. Some of its contents contain errors and it appears to be more of an agenda for a meeting than a record of a meeting.

 

(27) At the meeting the claimant was able to say what he wished to the panel. He was told at the meeting that he was dismissed and he received the dismissal letter immediately. There was not any adjournment of the meeting during which the dismissal letter was prepared or pause in the meeting to enable the dismissal letter to be typed. The tribunal has a serious suspicion that the dismissal letter was written before the disciplinary meeting had taken place. However as this point was never put to Mr Baird in cross-examination and he did not have an opportunity to comment on it, we do not attach any weight to this matter.

 

(28) The claimant appealed his dismissal on 15 October 2015. The appeal hearing took place on 23 October 2015.

 

(29) The respondent produced a sheet of paper with handwriting on it, dated 23 October 2015, but it is of no assistance whatsoever as to what transpired at the appeal meeting.

 

(30) The appeal meeting itself was also chaired by Mr Baird and Mr Nicholson was also in attendance.

 

(31) Again at the appeal hearing the claimant raised issues; about other members of staff signing customers' signatures on hire agreement documents; that this was common practice; and that was what he had been shown to do. The respondent did not take any steps whatsoever to investigate these allegations.

 

(32) It became clear during the hearing that the respondent had not provided to the claimant a written statement of his main terms and conditions of employment.

 

(33) Since being dismissed the claimant has unsuccessfully attempted to secure alternative employment. He even set up his own cleaning business but only got two inquiries.

 

THE LAW

 

5. (1) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair. If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).

 

(2) Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been completed and the non-completion is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130A The Employment Rights (Northern Ireland) Order 1996).

 

(3) Where the circumstances set out at paragraph 5(2) above apply, a tribunal shall, increase any award to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances, increase the award by up to 50 per cent, unless there are exceptional circumstances which would make such an increase unjust or inequitable (Article 17(3) and (4) The Employment (Northern Ireland) Order 2003).

 

(4) The failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the appropriate procedure (Article 130A(2) The Employment Rights (Northern Ireland) Order 1996).

 

(5) Where an employer dismisses an employee for misconduct, he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

 

(6) Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances, the latter stages of the procedure are sufficient to cure any earlier unfairness, according to the decision of the Court of Appeal in Taylor v OCS Group Ltd [2006] IRLR 613 (Harvey on Industrial Relations and Employment Law D1 [paragraph 1528]).

 

(7) When determining whether dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer (Harvey on Industrial Relations and Employment Law D1 [1535]).

 

(8) In the decision Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 the Northern Ireland Court of Appeal stated:-

 

"21 ... It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal must also, of course, consider whether the misconduct was a sufficient reason for dismissing the employee".

 

Later it added:-

 

"26 ... The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal".

 

(9) In the decision of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721. the English Court of Appeal reiterated that in a misconduct case British Home Stores v Burchell [1978 IRLR 379EAT] remains the cornerstone of misconduct dismissals. The head note states:-

 

"(A) According to British Home Stores Limited v Burchell, in cases of dismissal on the ground of misconduct, the tribunal has to decide whether the employer entertained a reasonable belief in the guilt of the employee. The employer must establish the fact of that belief; that there were reasonable grounds in his mind to sustain that belief; and that he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

 

It further approved the principle in A v B [2003] IRLR 405 EAT that when considering reasonableness under [Article 130(4) The Employment Rights (Northern Ireland) Order 1996], relevant circumstances include the gravity of the charges and the potential effect on the employee.

 

(10) In A v B Elias J commented at paragraphs 60 and 61:-

 

"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 lay men and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.

 

... Employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field, as in this case. In such circumstances anything less than an even handed approach to the process of investigation would not be reasonable in all the circumstances."

 

(11) Elias J commented further in relation to the adequacy of investigations at paragraph 79;-

 

"It is obvious that once these opinions have been formed by the various social workers it was going to be very difficult for any employee, however innocent in fact, to demonstrate that innocence. In such cases there is a particular need to ensure that reasonable steps are taken to identify such persons who may be able to give evidence to counter the allegations made against him.

 

Of course, the touchstone is always reasonableness. The recognition that the standard of reasonableness is going to depend upon the state of the case against an employee is found in the decision of the Employment Appeal Tribunals, Wood J giving the judgement, in the case of Ilea v Gravett [1988] IRLR 497. In the course of his decision Wood J said this:-

 

'... at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of enquiry and investigation, including questioning of the employee which may be required is likely to increase.'

 

(12) Elias J issued a further warning to tribunals at paragraph 86;-

 

"... It is no answer for an employer to say that even if the investigation had been reasonable it would have made no difference to the decision. That is to resurrect the heresy that was first brought to light by the decision of the Employment Appeal Tribunal in British Labour Pump v Byrne [1979] IRLR 94 and which was finally laid to rest by the House of Lords in Polkey v AE Daten Services Ltd [1987] IRLR 503. If the investigation is not reasonable in all the circumstances, then the dismissal is unfair and the fact that it may have caused no adverse prejudice to the employee goes, at least as the law currently stands, to compensation."

 

(13) In Roldan Elias LJ stated at page 724, paragraph 13;-

 

"So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where ... the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite."

 

(14) When determining whether the employer acted as any hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee's opportunity to take up further employment in the same field, or if the dismissal involves an allegation of a moral or criminal conduct which will harm the reputation of the employee, any reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation. ( Turner v East Midlands Claims Ltd [2013] ICR paragraph 20).

 

(15) Longmore LJ in the English Court of Appeal Decision in Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 at paragraph 18 commented;-

 

"... But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgement always bearing in mind that the test is whether the dismissal is within the range of reasonable options open to a reasonable employer ..."

 

(16) He later added at paragraph 19;-

 

"... 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 ..."

 

(17) A further helpful comment on misconduct dismissals is to be found in the English Court of Appeal decision in Fuller v The London Borough of Brent [2011] IRLR 414 at paragraph 54 where Morre-Bick LJ stated:-

 

"The precise nature and extent of the misconduct in question will obviously play a large part in determining whether the employer's decision to dismiss the employee is within the range of reasonable responses."

 

(18) Where the tribunal considers that any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award the tribunal shall reduce the amount accordingly (Article 156(2) The Employment Rights (Northern Ireland) Order 1996).

 

(19) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant it shall reduce the amount of the compensatory award by such a proportion as it considers just and equitable having regard to that finding (Article 157(6) The Employment Rights (Northern Ireland) Order 1996).

 

(20) In Steen v ASP Packaging Limited UK [EAT/0023/13] (17 July 2013, unreported) (Langstaff Presiding) the EAT stated that the application of those sections [Articles 156(2) and 157(6) The Employment Rights (Northern Ireland) Order 1996] to any question of compensation arising from a finding of unfair dismissal requires a tribunal to address the following: (1) It must identify the conduct which is said to give rise to possible contributory fault; (2) Having identified that it must ask whether the conduct is blameworthy - the answer depends on what the employee actually did or failed to do, which is a matter of fact for the tribunal to establish and which, once established, it is for the tribunal to evaluate it; (3) The tribunal must ask for the purposes of [The Employment Rights (Northern Ireland) Order 1996] if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the tribunal moves on to the next question; (4) This is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. It will likely be an error of law if the tribunal simply states its conclusion as to contributory fault and the appropriate deduction from it without dealing with those four matters. However, there is no need to address these matters at any greater length than is necessary to convey the essential reasoning. Of its nature a particular percentage or fraction by which to reduce compensation is not susceptible to precise calculation but the factors which helped to establish a particular percentage should be, even briefly, identified. (Harvey on Industrial Relations and Employment Law D1 [2716]).

 

(21) In ascertaining the loss suffered by the employee the tribunal shall apply the same duty to mitigate the loss as applies to damages recoverable under the common law of Northern Ireland.

 

(22) A reduction for contributory fault may also be made in a case of automatic unfair dismissal: Audere Medical Services Ltd v Sanderson UKEAT/0409/12 (29 May 2013) (HHG Serota QC presiding) (Harvey on Industrial Relations and Employment Law D1 [2717-2720]).

 

(23) It is important to recognise that the employee's conduct must be examined in order to determine the extent to which it has caused or contributed to the dismissal and not to its unfairness. So if, for example, a dismissal is merely because of some procedural defect for which the employee cannot be held responsible, his conduct can still be taken into account when assessing the compensation to which he is entitled (see, eg, Jamieson v Aberdeen County Council [1975] IRLR 348] (Harvey on Industrial Relations and Employment Law D1 [2721]).

 

(24) Tribunals may take a very broad view of the relevant circumstances when determining the extent of contributory fault. This was the view of NIRC in Maris v Rotherham Corporation [1974] IRLR 147. The following dictum of Sir Hugh Griffiths in that case, although made in the context of a predecessor to the present provision applies equally to [The Employment Rights (Northern Ireland) Order 1996]:-

 

"[The section] brings into consideration all the circumstances surrounding the dismissal, requiring the tribunal to take a broad common sense view of the situation and to decide what, if any, part the [claimant's] own conduct played in contributing to his dismissal and then in the light of that finding decide, what, if any, reduction should be made in the assessment of this loss." (Harvey on Industrial Relations and Employment Law D1 [2722]).

 

(25) Furthermore, a reduction for contributory fault can be made even when the employee's action is unrelated to the principle reason for the dismissal. (Harvey on Industrial Relations and Employment Law D1 [2724]).

 

(26) The contributory conduct must be conduct which is 'culpable or blameworthy' and not simply some matter of personality or disposition or unhelpfulness on the part of the employee in dealing with the disciplinary process in which he or she has become involved: Bell v The Governing Body of Grampian Primary School [2007] ALL ER 148. In Bell the EAT stated that, in considering contribution, the burden as a matter of law, is not always on the employer to show by direct evidence from the dismissing officer or dismissing panel what specific factors were in their minds at the date of the dismissal. As a matter a sheer practicability that evidence may not always be available. (Harvey on Industrial Relations and Employment Law D1 [2724.01].

 

APPLICATION OF THE LAW AND THE FINDINGS OF FACTS TO THE ISSUES

 

6. (1) The claimant has accepted that he signed the name of Ms Denise McReynolds on the hire agreement with BOC. He has never denied that and admitted it from the outset.

 

(2) The tribunal is satisfied that the respondent has shown the reason for the dismissal, i.e., misconduct and that it is one of the statutory grounds on which an employer may fairly dismiss an employee.

 

Investigation

 

(3) The tribunal is not persuaded that the investigatory process was fair. That unfairness was both procedural and substantive.

 

(4) The procedural flaws in the investigation are manifold. The flaws included;-

 

(a)       The respondent's manager, Mr Nicholson, on being told that a serious offence had occurred which the respondent characterises as fraud, failed to make any note whatsoever of the complaint. Similarly he failed to request a statement from Colin Copeland, who attended at the respondent's business and complained that Denise McReynolds signature was made in her absence, or to request a statement from Denise McReynolds herself.

 

(b)       Whenever this report was made to the owner of the business, Mr Baird, he likewise failed to make any note of this complaint at all even though he told the tribunal that he regarded it as a serious matter.

 

(c)        From the outset, when approached about this matter, the claimant openly, frankly and clearly stated that not only had he signed
Ms Denise McReyonds' signature but that this was common practice and indeed was what he had been shown to do. At this stage the respondent did not make any attempt whatsoever to investigate this contention. Similarly when this contention was repeated at the disciplinary meeting and at the appeal hearing the respondent failed again to take any steps whatsoever to investigate it.

 

(d)       Despite the respondent viewing this charge against the claimant as very serious, perhaps even fraud, it failed to make a proper minute of the disciplinary meeting or the appeal meeting. The documents provided to the tribunal, purporting to be minutes of these meetings, are anything but minutes. They contained errors, the writing on them appears to have been made at different times and it is not clear whether it is an agenda for a meeting or comments that were made at a meeting or elsewhere or a combination of all these factors.

 

(5)           There were also substantial flaws in the conduct of the investigation. It is clear that there was a view within the respondent business that what the claimant had done amounted to fraud. Fraud is a serious criminal offence with potentially profound consequences for the future life of anyone dismissed for that reason. As Elias J stated in A v B, ".... serious allegations of criminal misbehaviour, at least where disputed must always be the subject of the most careful investigation" (paragraph 60). At paragraph 61, he further commented, "... employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field ...". The respondent failed to carry out a "most careful investigation"

 

(6)           The respondent failed to implement the requirements of a fair investigation in circumstances such as the current case as articulated by Elias J in A v B at paragraph 60 where he said:-

 

"... a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."

(7)           There was not any attempt to focus on evidence that would exculpate the claimant, for example testing whether the colleagues of the claimant had signed customers' names on hire agreements or whether that was how staff were trained in dealing with this matter, or how the claimant was trained.

 

(8)           The investigation therefore was severely flawed and unfair. Elias J in A v B (paragraph 86) suggested that an unfair investigation of itself rendered a dismissal unfair.

 

The Disciplinary Hearing

 

(9)           The tribunal had concerns that the evidence against the claimant was provided by both Mr Johnston, the manager, and Mr Baird the owner, and both were involved in conducting the disciplinary hearing, and in the decision-making. This concern is compounded by the absence of a proper note of what transpired at the disciplinary hearing which potentially could allay any concerns that the tribunal had.

 

(10)        However the disciplinary hearing was substantively flawed in that it failed to evaluate the evidence properly, and in particular failed to investigate the claimant's contentions that what he did was both normal practice and what he had been shown to him to do. In addition it failed to make any attempt to focus on any exculpatory evidence on behalf of an employee faced with a serious charge. These failings rendered the disciplinary hearing itself seriously flawed.

 

(11)        The disciplinary hearing could not be said to have been carried out fairly and reasonably in all the circumstances as it failed to initiate, "... a careful and conscientious investigation of the facts ..." when faced with the claimant's explanation for what he had done and why he had done it.

 

The Appeal

 

(12)        Likewise the appeal process was unfair in that it failed to correct the substantial flaws at the disciplinary hearing despite the claimant's contention at the appeal hearing that all that he had done was standard practice within the respondent business and was what he had been shown to do.

 

(13)        The appeal panel comprised Mr Baird and Mr Johnston and it did not address its mind to consider if there were exculpatory evidence in relation to the alleged misconduct against the claimant. It failed to carry out investigations that should have been previously undertaken. The appeal hearing therefore is also unfair in itself and it failed to correct the deficiencies of the original disciplinary hearing.

 

Sanction

 

(14)        The sanction therefore of dismissing the claimant is untenable in the light of the procedural and substantive flaws set out above.

 

(15)        Accordingly the claimant was unfairly dismissed by the respondent according to the ordinary principles of unfair dismissal law.

 

Automatically Unfair Dismissal

 

(16)        In this claim it is clear that the statutory dismissal procedure is applicable and that the respondent failed to follow the two-step approach set out in The Employment (Northern Ireland) Order 2003. The requisite information in relation to the allegation of gross misconduct was not provided nor was there any supporting documentation provided nor was there any documentation provided which indicated the basis for the statement that the claimant was suspected of having committed an act of gross misconduct.

 

(17)        The failure to follow the statutory procedures is the responsibility of the respondent. Therefore the claimant has been automatically unfairly dismissed.

 

(18)        By reason of the automatic unfair dismissal the tribunal is satisfied that there should be an uplift in accordance with Article 17 of the 2003 Order. The tribunal takes the view that the appropriate uplift should be 40% as the respondent did have some meetings with the claimant however flawed they were. There were not any exceptional circumstances that would render an increase of 40% unjust or inequitable. Indeed no such submission was made to the tribunal.

 

Polkey Decision

 

(19)        The decision in Polkey cannot render an automatically unfair dismissal fair but it can give rise to a reduction in the amount of damages up to 100% in appropriate circumstances.

 

(20)        However in a claim of ordinary unfair dismissal the Polkey decision can cause a dismissal to be fair if the tribunal is of the view that had the proper procedures been applied the employee would have been dismissed in any event.

 

(21)        In relation to the latter, given the contentions by the claimant that what he did was standard practice and indeed what he had been shown to do, the tribunal could not be satisfied that had the proper procedures, including a proper investigation, been followed that the dismissal would have occurred in any event.

 

(22)        In relation to an automatically unfair dismissal the issue of Polkey goes to remedy. However given the un-investigated contentions of the claimant the tribunal could not be satisfied that even if the statutory procedures had been applied that the claimant would have been dismissed in any event. It is therefore inappropriate to make any reduction in compensation on the basis of the decision in Polkey.

 

Contributory Fault

 

(23) The conduct of the claimant, which possibly could give rise to the contributory fault, is the signing of a customer's name on a hire agreement. The tribunal accepts that this conduct is blameworthy in that it is not usual to sign a signature on behalf of another person without that person's permission or at least without an indication on the document that you are so doing. However that blameworthy conduct is mitigated considerably by the claimant's evidence that it was standard practice to do what he had done and indeed he had been shown to do it by his colleagues within the respondent business. The tribunal accepts that it was the complaint on behalf of Denise McReynolds that gave rise to the claimant's dismissal for gross misconduct by signing a customer's name without their permission or without any indication that one is so doing. The tribunal considers, having regard to what the claimant did and the circumstances in which he did it, that the claimant was guilty of contributory fault and that there should be a reduction in his compensation by 30% to reflect this.

 

Remedy

 

(24) The tribunal is satisfied that the claimant mitigated his loss.

 

Basic award

 

(25) 12 September 2012 to 9 October 2015

 

2 x 1.5 x £490.00 = £1,470.00

 

1 x 1 x £490.00 = £ 490.00

£1,960.00 = £ 1,960.00

 

Compensatory Award

 

10 October 2015 to 23 September 2016

 

£263.34 x 50 = £13,167.00

 

Future loss to 17 December 2016

 

£263.34 x 12 = £ 3,160.08

Total compensatory award = £16,327.08

 

+ 40% uplift = £ 6,530.83

£22,857.91

 

- 30% contributory fault = £ 6,857.37

£16,000.54 £16,000.54

 

Loss of statutory rights £ 250.00

 

 

Total compensation = £18,210.54

 

The prescribed period is 10 October 2015 to 23 September 2016.

 

The prescribed amount is £2,210.00 (£18,210.54 - £16,000.54).

 

Written particulars of employment

 

(26) Although it emerged during the course of the hearing that the claimant had not been provided with a written statement of particulars of his employment the claimant did not make any application in relation to that and as a consequence the respondent was not given the opportunity to address that matter. In those circumstances the tribunal does not make any award to the claimant for this failure.

 

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

 

8. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996, as amended, apply to the decision. Your attention is drawn to the attached Recoupment Note, which forms part of this decision.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 1 March and 5 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: