Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 455/16

 

 

 

CLAIMANT: Gerald Moore

 

 

RESPONDENT: G4S Secure Solutions (UK) Ltd

 

 

DECISION

 

The unanimous decision of the tribunal is that arising from procedural flaws the claimant was unfairly dismissed by the respondent. The tribunal find that had the procedural flaws which rendered the dismissal unfair not existed that it is likely that the claimant would still have been dismissed and that the claimant contributed wholly to the dismissal such that basic and compensatory awards are reduced to nil.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Bell

 

Members: Mrs D Adams

Mr B Heaney

 

 

Appearances:

 

The claimant was represented by Mr Jim Thompson.

 

The respondent was represented by Ms Jennifer Owusu- Akyaw, Regional In-House Employment Counsel for the respondent.

 

 

1.             The claimant in his claim, presented to the tribunal on 16 February 2016, complained that he was unfairly dismissed by the respondent on 3 December 2015 on the grounds the respondent failed to give him the opportunity to attend an appeal hearing in which he intended to focus upon the improper use of data about him relied upon by the respondent in its decision and which he believed was in breach of the Data Protection Act.

 

2.             The respondent in its response resisted the claim and contended; the dismissal was fair by reason of misconduct of which it was informed by the Northern Ireland Courts Service (NICTS) who ran the court in which the claimant worked; there had been no breach of the Data Protection Act (DPA) in the respondent having relied upon a written statement of an NICTS employee as to what they had viewed on CCTV footage in accordance with the NICTS's policy; the claimant had declined to attend an appeal hearing offered for 30 December 2016; an appeal would have made no difference if based solely on misuse of CCTV and claimant would have been dismissed in any event; and alternatively that the dismissal was fair and reasonable based on some other substantial reason.

 

3.             At a Case Management Discussion on 22 April 2016 the precise legal and main factual issue in the case was identified as, 'Was the claimant unfairly dismissed?' and the case listed for hearing on 14 and 15 June 2016.

 

4.             By agreement between the parties on 13 June 2016 the main hearing of the unfair dismissal claim was postponed to facilitate the holding of an internal appeal in respect of the dismissal.

 

5.             At a CMD following completion of a first stage internal appeal and the claimant not exercising his internal appeal rights to appeal to a second stage, the substantive hearing was re-listed for 24 and 25 November 2016 and a Pre Hearing Review listed for 28 October 2016 to decide:

 

(A)          Should the claim form, as currently drafted, be construed as including an assertion that, on one or several of all the grounds specified below, the dismissal is unfair.

 

1)         Dismissal was a disproportionate sanction.

 

2)         The respondent's determination that the claimant was guilty of the relevant disciplinary offence(s) was a conclusion which brought the dismissal outside the range of reasonable responses, in light of all the evidence which was actually and potentially available to the respondent.

 

3)         The dismissal was procedurally unfair.

 

4)         The dismissal was unfair because of improprieties in relation to the conducting of the appeal.

 

(B)          If the claim form, as currently drafted, should not be construed as including such an assertion (the assertion referred to above), is the claimant granted leave to amend his claim form so as to include such an assertion?

 

6.             At a Case Management Discussion on 28 October 2016 it was agreed more appropriate that the PHR issues be subsumed within the substantive hearing rather than there be a potential duplication of consideration of evidence and matters relevant to the substantive hearing which would not be in accordance with the tribunal's overriding objective.

THE ISSUES

 

7.             The relevant issues for the tribunal were as follows:

 

(i)            (A) Should the claim form, as currently drafted, be construed as including an assertion that, on one or several of all the grounds specified below, the dismissal is unfair.

 

1)         Dismissal was a disproportionate sanction.

 

2)         The respondent's determination that the claimant was guilty of the relevant disciplinary offence(s) was a conclusion which brought the dismissal outside the range of reasonable responses, in light of all the evidence which was actually and potentially available to the respondent.

 

3)         The dismissal was procedurally unfair.

 

4)         The dismissal was unfair because of improprieties in relation to the conducting of the appeal.

 

(B) If the claim form, as currently drafted, should not be construed as including such an assertion (the assertion referred to above), is the claimant granted leave to amend his claim form so as to include such an assertion?

 

(ii)           Was the dismissal automatically unfair for failure to complete the SDP?

 

(iii)          What was the reason for the claimant's dismissal?

 

(iv)          Did the respondent believe that the claimant was guilty of the misconduct alleged?

 

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

 

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

 

(vii)         If the claimant was unfairly dismissed did he by his conduct contribute to his dismissal such that a percentage reduction of any compensation should be applied?

 

(viii)       If there was a procedural irregularity rendering the decision to dismiss unfair did it make no difference to the outcome such that a Polkey reduction should be applied to any compensatory award?

 

EVIDENCE

 

8.             The tribunal considered the claim, response, agreed bundle of documentation, claimant's schedule of loss, claimant's written submissions for PHR, respondent's skeleton argument for PHR, respondent's written submissions, written statements of Tracey Smylie, Area Manager for the respondent, Lisa Doherty, former HR Business Partner of the respondent, Ian Melanophy, Strategic Account Manager for the respondent, Robert Campbell the claimant's Trade Union Representative who accompanied the claimant at the disciplinary and appeal hearings and of the claimant together with their oral testimony save for that of Lisa Doherty who was not in attendance. The claimant objected to any weight being attached to the statement of Lisa Doherty in her absence whereas the respondent contended her statement was consistent with the content of the documentation presented and invited the tribunal to accept the evidence therein.




 

RELEVANT FINDINGS OF FACT

 

9.             The claimant was employed as a court official from 1 October 2001, his employment transferred to the respondent under TUPE in 2011 when it took over security for the Northern Ireland Courts and Tribunal Service (NICTS). It was usual for the claimant to work part of the week in the Courthouse in Bishop Street, Londonderry and part in Strabane Courthouse.

10.          The respondent's disciplinary procedure provides that in circumstances where dismissal may result if an allegation is substantiated, an employee may be suspended with pay until the investigation and disciplinary interview have been concluded. Under 'Administration' a form 'PM75' (confidential interview report form for insertion of details relating to the employee's name, number and job role, place date and time of the interview, people present, matters discussed and conclusion of interview) is required to be completed at the time of the interview for all disciplinary interviews. Examples of offences normally regarded as gross misconduct include 'Leaving a post without permission'. Company rules are referred to therein as being detailed in the employment schedules relating to operational employees, work related standards and instructions.

 

11.          The respondent's Assignment Instructions for the claimant's workplace under 'Records to be completed' require for the 'Sign in & out log' located in the G4S office to be completed 'Each time an official leaves site.'

 

12.          In January 2015 the claimant verbally and by letter dated 16 January 2015 raised a concern with the respondent regarding the ability of a work colleague, Rebecca Loughlin, which he considered impacted on his own safety at work, no response was received.

 

13.          An investigatory meeting took place on 19 May 2015 relating to two matters for which the claimant was suspended from work, one of which was an allegation of leaving site without permission on 11 May 2015. The allegation of leaving site without permission was not pursued but consequently the claimant was well aware of the respondent's requirement for him to sign in & out albeit that the primary intention behind it was for health and safety purposes rather than employee surveillance. F ollowing a disciplinary hearing on 3 August 2015 in respect of the remaining disciplinary matter the claimant was issued by letter dated 11 August 2015 with a first and final written warning to remain on his personnel file until 10 August 2016 which the claimant then appealed.

 

14.          The claimant returned to work and undertook shifts in Bishop Street Courthouse on 17 to 20 August 2015.

 

15.          On 20 August 2015 the claimant returned to work at Strabane Courthouse. The claimant's shift along with that of one other colleague, Paul McIntyre, commenced at 7.30 am. Other staff members, Ciaran Patrick Ward and Roberta Loughlin whilst not scheduled to start until 9.00 am arrived and signed in at 8.30 am. Thereafter Colin McCrea and John Pedan arrived at 10.00 am. The sign in & out log for 20 August 2015 records the claimant as having left the premises on one occasion at 13.15 pm and returned at 13.45 pm for his permitted lunch break.

 

16.          By a letter (incorrectly dated 27 August 2015) which was received by Ms Smylie on 25 August 2015, Roberta Loughlin wrote to Stephen Monaghan, one of the respondent's managers setting out that she was on duty from 8.30 am on 20 August 2015 and had recorded information from a telephone call taken at approximately 8.50 am which she had tried to pass on to the claimant who was working the sanger and reception of Strabane Courthouse, and stated that the claimant, 'was in the town shopping at that time' and when she gave him the note of information taken down he had snapped it from her and crumpled it in his hand. Ms Loughlin indicated concern that the claimant was trying to belittle and intimidate her and expressed feelings of embarrassment and of being undermined by the claimant.

 

17.          Ms Smylie was tasked with investigating the allegations of harassment and the claimant leaving site.

 

18.          On 25 August 2015 Ms Smylie telephoned Ms Loughlin and questioned her about the allegation that she felt intimidated. Ms Smylie recorded a written memo of the call at the bottom of which she noted:

 

'Use client's CCTV to verify an allegation

to re-affirm the allegation.

How did Roberta know he left site?

Did G4S give authorisation'.

 

19.          On 2 September 2015 Ms Smylie interviewed Ms Loughlin in relation to the grievance. The interview concentrated on the allegations of harassment. The only reference to the claimant leaving site recorded in the minutes was:

 

'R.L. The first day he came back I came in at 8.30 and Ronnie and Paul were opening. Ronnie went into the town.

T.S. What for?

R.L. I didn't know what for.

T.S. When he went up the town how long was he away.

R.L. I don't know Paul ran out to let someone in the gate cause [sic] one should be in the sanger and one security office. Then I took the phone call at about 8.50 am....'.

20.          On 3 September 2015 Ms Smylie attended Strabane Courthouse and verbally informed the claimant that he was being suspended because a complaint had been received from a female member of staff about threatening behaviour.

 

21.          On 4 September 2015 Ms Smylie informed Patricia McKee, an employee of the NICTS, that there was an allegation that the claimant had left site without authorisation, (not the other way around as stated in the respondent's response). The claimant asked Ms Smylie if he could be transferred to work in Bishop Street but was informed that it was not the respondent's policy to do so.

 

22.          On 9 September 2015 an appeal hearing took place in respect of the first and final written warning issued to the claimant on 3 August 2015.

 

23.          By letter dated 25 September 2015 Ms Smylie wrote to the claimant further to their discussion on 3 September 2015 to confirm that he had been suspended from work until further notice pending investigation into two allegations, ' That you left site without authorisation and without completing the sign in/out register on Thursday 20 August 2015' and, 'Allegations of threatening behaviour toward a colleague'. A copy of the respondent's disciplinary procedure was enclosed.

 

24.          By letter dated 5 October 2015 the respondent confirmed the appeal outcome decision to uphold the first and final written warning issued to the claimant on 3 August 2015.

 

25.          An investigatory meeting took place on 21 October 2015 attended by the claimant at which Ms Smylie concentrated on the claimant's working relationship with Ms Loughlin and allegations of threatening behaviour made by her. The claimant put to Ms Smylie that he considered the allegations 'pay back' arising from concerns he had raised about Ms Loughlin. The minutes record Ms Smylie's enquiries relating to the allegation of the claimant having been off site as follows:

 

Page 1

 

'T.S. Did you leave site?

R.M. Only when I booked out at lunchtime.'

 

Page 5

 

'T.S. She explained 20th August ... When she came in you were off site. She took a phone call ... Roberta began to tell you about the message and passed you the note. She says you snapped the paper out of her hand and crumpled it up.

R.M. No.'

 

Page 6

'T.S. She says 20 August Connie got engaged you went and got a card ...

R.M. Yes ... When I went out at lunch time I went to the bank and got flowers delivered and the card...'

 

Page 11

 

'T.S. 20 August she says you were up town shopping the only time you were off site was lunch break?

R.M. Yes.'

 

26.          Ms Smylie did not complete a PM75 Confidential Interview Report form in respect of her investigatory meeting with the claimant but instead provided a verbal explanation to Ms Doherty of information normally contained along with relevant documentation.

 

27.          On 22 October 2015 Ms Smylie spoke to Mr McIntyre, no enquiry was made whether the claimant had left site.

 

28.          On 27 October 2015 Ms McKee confirmed to Ms Smylie that she had viewed NICTS CCTV footage relating to 20 August 2010 and confirmed that one of the respondent's staff members had left site returning some 20 minutes later. Ms Smylie recorded on her telephone memo 'CCTV footage is available. Permission to be sought reasonably from R. Moore to view the footage.'

 

29.          In response to a request from Ms Smylie, Ms McKee confirmed in an email dated 13 November 2015 that she had reviewed the CCTV footage and had by way of a process of elimination advised that the person leaving site was in all likelihood the claimant.

30.          By letter dated 13 November 2015 from Lisa Doherty the claimant was required to attend a disciplinary hearing on 18 November 2015 to consider allegations against him ' That you left site without authorisation and without completing the sign in/out register on Thursday 20 August 2015' and ' Allegations of threatening behaviour towards a colleague' potentially amounting to gross misconduct which could result in immediate termination of employment. The respondent's disciplinary procedure was enclosed and the claimant advised that he would be provided copies of documents that would be considered at the hearing.

 

31.          On 18 November 2015 the claimant accompanied by his union representative Robert Campbell attended the disciplinary hearing chaired by Lisa Doherty. The claimant objected to the hearing proceeding due to its timing and lack of information provided as to the allegations which he considered unfair and unjust. The hearing was re-arranged to take place at 11am on the 24 November 2015 and the claimant was provided with copy documentation to be relied upon by the respondent.

 

32.          On 24 November 2015 the claimant, accompanied by Mr Campbell, attended the postponed disciplinary hearing chaired by Ms Doherty. As recorded in the minutes the claimant attributed Ms Loughlin's ' Vindictive and retaliation letter' as being in response to his letter of 16 January 2015 to the respondent about Ms Loughlin and pointed out that Ms Loughlin had made reference to it in her statement of 2 September 2015. The claimant read out from a typed document he had prepared that he ' was not down the town no reason to I was in the toilet/staff room making a coffee before /going to the Sanger'. The claimant raised concern over selective interviewing by the respondent and disputed the allegations made. On referral to the telephone memo of Ms Smylie's call with Ms McKee on 25 August 2015 the claimant raised the mention of CCTV therein and the minutes record that he stated 'we need to look at policy regarding CCTV and we would be opposed to this' and that in terms of the allegation of leaving site he did not want it to be used. Mr Campbell then said ' we do not have any statements or evidence from Paul Steven or Ciaran. Where were you?' The claimant replied that he was in the Sanger. The claimant was next referred by Ms Doherty to a document relating to the process of signing out and was asked to detail his understanding, the claimant responded, ' Leaving site one signs out in book i.e. lunch', the claimant was asked if he understood the importance of it which he acknowledged stating he had ' been through this with [Tracey Smylie]'. Ms Doherty asked the claimant ' Do you understand the disciplinary consequences can you explain' to which the claimant replied, 'We have had discussion with SM - H&S requires signing in & out.' Ms Doherty put to the claimant 'Do you understand how company views this so seriously. [I] Want to ascertain importance is realised' and referred him to the prior disciplinary matter in which concern about leaving site without following the required process had been raised although not pursued, which the respondent considered demonstrated that the claimant understood the importance of the ' sign in & out process inclusive of leaving site without permission'. Mr Campbell stated that there was no evidence of the allegation of leaving site without signing/ authorisation, there had been no superior in Strabane for some time and that the signing procedure was implemented for health and safety reasons, also that the record showed other staff members leaving at times other than their authorised lunch break and he queried who had authorised them. Ms Doherty proceeded by asking whether the claimant was saying on the morning of 20 August 2015 that he did not leave the site without signing in or out, the claimant replied ' Yes, as stated in my letter'. Whilst not fully recorded in the minutes we find as confirmed by the outcome letter and Mr Campbell's recorded response in the minutes Ms Doherty then advised the claimant that there was a statement from NICTS who had reviewed CCTV footage for the purposes of ensuring that monies were not being charged inappropriately for staff members who were not on site and information provided stated the view that he was not on site for a time, therefore money should not be charged to NICTS. Mr Campbell responded that they would need to see evidence that the Courts could not be charged for hours when staff are off site and to say it was potential fraudulent activity was very harsh. The claimant was offered the opportunity to give Ms Doherty permission to review CCTV footage in order to clear the allegation, which the claimant refused. Mr Campbell's evidence was that Ms Doherty had DVD discs present at the hearing which were understood by him and the claimant to relate to 20 August 2015, however we find based on the correspondence from NICTS it more probable that the actual DVD containing footage relating to 20 August 2015 was not released to the respondent until 5 September 2016. Ms Doherty requested permission from the claimant to view CCTV footage of 20 August 2015 but the claimant refused in the absence of a letter of authenticity from NICTS as owner of the CCTV permitting the respondent to use this data. Ms Doherty then referred the claimant to the NICTS's view of CCTV evidence being that the staff member shown as leaving was the claimant and asked had he any comment. The minutes then record:

 

'L.D. You have stated that you did not leave site.

R.M. Yes.

R.C. We need to look at policy regarding CCTV certainly not there to monitor staff.

L.D. Would it be relevant had he left site.

R.C. Only if relevance applied to all staff.

L.D. Are you saying reason for leaving is compelling.

R.C. Can't answer that - depends on client request.

L.D. RM has said he had not left site.

R.C. Yes so move on.'

 

Ms Doherty then summarised that the claimant had denied leaving site, did not perceive any inappropriate behaviour, she now had evidence and would decide what to do. Ms Doherty asked the claimant to review the notes and the meeting concluded.

 

33.          On 24 November 2015 Paul McIntyre in response to questions put by Ms Doherty confirmed that he was in the sanger from approximately 08:20 hrs and had not witnessed the alleged crumpling up of the note, nor seen or heard any mention of an incident between the claimant and Ms Loughlin. Mr McIntyre also confirmed that management had made it clear that staff must sign in and out on leaving the site and he would expect the respondent to discipline someone who did not do so.

 

34.          In an email dated 27 November 2015 to Ms Smylie entitled 'discussion on 24 November 2015 re G4S staff member at Strabane', Ms McKee set out:

 

'Following on from the discussion we had yesterday you may want to review the CCTV footage on 20 August at Strabane which I have retained.

 

The footage shows an older man around sixty leaving the site. I have checked back on the Securetrax site for the scheduling on that date at that time and the two G4S officials scheduled and recorded as attending on this date are Paul McIntyre and Ronnie Moore. I know Paul McIntyre and the person leaving is not Paul. It is therefore reasonable to assume that the person leaving is Ronnie Moore. From the footage he appears to be off site for approximately 20 minutes.

 

NICTS and G4S have had several discussions about staff leaving site without authorisation and without hand scanning out, in fact on this particular occasion there appear to have been two G4S staff on site at that time so this has left a lone worker on site. This causes me concern for two reasons

 

1)         if one person was off site for twenty mins was NICTS charged for this from taxpayers money and in this current financial climate we are held accountable for every penny spent and

 

2) given that the opening team have to complete security checks etc. in order to meet the contractual obligations of maintaining H&S and security of the buildings and all court users, were these all properly undertaken?

 

Staff at Strabane have recently through the GMB Union raised concerns of the severe dissident threat in Strabane, concerns about insufficient manpower to carry out all their duties and concerns about lone working. Where a member of a two man team goes off site without authorisation does he not in fact create the very situation that his colleagues are raising concerns about?

 

I am happy to discuss this further and facilitate you viewing the CCTV if that would be useful?'

 

35.          On 2 December 2015 Ms Doherty interviewed Mr McCrea about the incident on 20 August 2015 between the claimant and Ms Loughlin. Minutes record Mr McCrea's opinion that the claimant and Ms Loughlin had ' a difficult & unworkable' relationship but that he did not see the incident happen or the claimant after it. When asked what happens if an employee fails to sign off and back in to site on the court contract Mr McCrea stated, ' It is a really serious issue, people have lost their job over it before. Everyone knows we have to sign in & out. There is a special folder & all for it.'

 

36.          By letter dated 3 December 2015 Ms Doherty wrote to the claimant confirming on review of the evidence she had no alternative but to dismiss him for Gross Misconduct in relation to the allegation that he left site without authorisation and without completing the sign in/sign out register on Thursday 20 August 2015, given that; he confirmed he was aware of the sign in & sign out process and that failure to comply was considered to be a serious breach of conduct; he had accepted that had he left the premises without complying this would have been a serious breach of conduct; he denied leaving site all day save for lunch; he was advised that there was a statement from court services who had reviewed CCTV footage for the purposes of ensuring that monies were not being charged inappropriately for staff members who were not on site and information provided stated that he was not on site for a time, therefore money should not be charged to the court service; he was provided with the opportunity to give Ms Doherty permission to review the CCTV footage in order to clear the allegation which he refused to take and she could see no reason for this refusal unless there was something to hide; she had considered information and subsequent statements from NICTS; verified that the claimant was the staff member mentioned and believed he had misled her during his disciplinary hearing and it was more probable than not he lied about leaving the premises, breaching trust and confidence; she considered it more probable on the balance of evidence of two statements that the claimant had left site, set against his denial of having done so and refusal of permission to review CCTV footage, that he had left site without completing the sign in & out log and proper authorisation practice. Ms Doherty concluded her letter with confirmation that there was insufficient evidence to uphold the allegation of threatening behaviour toward a colleague. Written confirmation of Ms McKee's and Mr McCrea's evidence was enclosed and the claimant advised of his right of appeal.

 

37.          By letter dated 9 December 2015 the claimant wrote to the respondent stating his concern that CCTV evidence relied upon in the decision to dismiss him and the sharing of information by NICTS with the respondent was in breach of the Data Protection Act, that he intended to request their policy and asked the respondent for a full response as he would be relying on this information to assist him in his appeal against their dismissal decision and requested they extend the timescale for him to make that appeal until after receipt of their response.

 

38.          By a letter 18 December 2015 the claimant was invited by the respondent's area manager Adrian Newell to attend an appeal hearing in Belfast on 30 December 2014.

 

39.          The claimant by letter of 21 December 2015 acknowledged the respondent's 'unexpected letter inviting me to an appeal hearing' referring to his request for their CCTV policy which he was still awaiting a response to and asked that his appeal date not be set until he received this information. The claimant requested from Mr Newell a copy of the respondent's policy on the usage of CCTV. The claimant furthermore set out, 'I am unable at present to travel or drive any distance for medical reasons if you require confirmation of this I can arrange this from my doctor' and he requested any further meeting be held, 'in a neutral venue in Londonderry.' The claimant in addition sent a text message on the same day to Mr Newell in which he confirmed he had sent a response to his letter, was awaiting information from the respondent before 'putting in my appeal to add to my letter' and stated 'Union rep is not available until after 4 January 2016' because Mr Campbell was on annual leave until then.

 

40.          The proposed appeal hearing for 30 December 2015 did not take place and was not re-arranged.

 

41.          The claimant presented a claim to the tribunal on 16 February 2016 for unfair dismissal and set out therein that the respondent had failed to give him the opportunity to attend an appeal hearing against their decision to dismiss him and that the main focus of his appeal would have been based on the improper use of data about him.

 

42.          At a Case Management Discussion on 22 April 2016 the precise legal and main factual issue in the case was identified as, ' Was the claimant unfairly dismissed?' and the case listed for hearing on 14 and 15 June 2016 however by agreement between the parties the main hearing of the unfair dismissal claim was thereafter postponed to facilitate the holding of internal appeal in respect of the claimant's dismissal.

 

43.          Ian Melanophy, an independent manager of the respondent with no line responsibility for the managers involved was asked to conduct the appeal. By letter dated 29 July 2016 Mr Melanophy invited the claimant to an appeal hearing on 9 August 2016 to consider his appeal under the respondent's disciplinary procedure against the decision to dismiss him. The claimant did not receive the respondent's invite letter before the proposed appeal meeting and it did not take place on 9 August 2016.

 

44.          On 8 August 2016 Ms Smylie wrote to Ms McKee:-

 

'Following recent discussions I write to formally request the CCTV footage held by NICTS relating to a G4S staff member of staff leaving Strabane Courthouse on 20 August 2015 during shift.

 

The reason for the request is that the officer is subject to an ongoing disciplinary process for leaving site without permission thereby weakening the security of the site. NICTS advised G4S that this incident was recorded on CCTV and provided G4S with this information, however at that stage NICTS were only able to identify the person by a process of elimination from the other male security officer who was on duty at the time. This was referred to by G4S management as part of the evidence in the disciplinary hearing. However the employee has challenged the description and is adamant that it is not himself that is on CCTV leaving site during shift.

 

If provided, G4S would intend to show the images to the employee to settle the matter.'

 

45.          On 10 August 2016 the claimant received a text message from Mr Melanophy which confirmed that Mr Melanophy had been asked to hear the appeal and requested that the claimant contact him, the claimant replied by text message asking that Mr Melanophy correspond with more detail by letter. In a further text on 12 August 2016 the claimant suggested to Mr Melanophy a venue for the hearing. On 15 August 2016 the claimant wrote to Ms Smylie to enquire what was happening regarding the appeal hearing.

 

46.          Mr Melanophy on return from a period of leave wrote again to the claimant on 24 August 2016 and requested he attend an appeal hearing on 5 September 2016 at the claimant's suggested venue.

 

47.          On 25 August 2016 NICTS's Records and Information Management Team wrote to Ms Smylie and confirmed that her request of 8 August 2016 for access to CCTV footage had been passed to them and in their reply set out the requirements of the DPA in respect of fair and lawful processing of personal data which they were satisfied had been provided by information notices displayed that CCTV was in operation and believed there was 'a reasonable expectation this information could and perhaps would be shared in circumstances relating to disciplinary proceedings and in particular where an alleged breach of security has occurred.' Furthermore, then as the Data Controller, and as required, they were satisfied that there was a lawful condition in place Under Schedule 2 of the DPA and lawful basis for processing under Schedule 2 (6) 'The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.' They confirmed they were satisfied after careful consideration of the facts 'that there is a legitimate interest and that disclosure of the information is justified based on the rights of the data subject (right to confidentiality under Schedule 1 DPA) given that the individual in question allegedly left the premises without permission and therefore weakening security of the site.' In conclusion NICTS advised the respondent that the DVD provided by them contained 'personal data' and could only be used for the purposes declared in the respondent's letter, the respondent now being the Data Controller for the 'personal data' contained thereon and responsible for compliance with the DPA in respect of further disclosures of the images and set out options for collection or postage of the CCTV footage to the respondent.

 

48.          The claimant wrote back to Mr Melanophy on 29 August 2016 and requested a change of date of the proposed appeal hearing. Ultimately by letter of 6 September 2016 the claimant agreed to attend an appeal hearing on 13 September 2016. Mr Melanophy by letter dated 8 September 2015 forwarded to the claimant copy information he would refer to during their meeting, namely the NICTS letter to Ms Smylie of 25 August 2016, letter from Ms Smylie to NICTS of 8 August 2016 and NICTS CCTV Usage Guidance.

 

49.          On 13 September 2016 the claimant accompanied by Mr Campbell attended the appeal meeting conducted by Mr Melanophy. The claimant provided an appeal bundle which included documentation already held by Mr Melanophy along with a document referred to as record of management references to CCTV, Strabane daily sign in & out sheets and correspondence from the GMB Workplace organiser to the Data Controller Central Management Team raising concerns on behalf of two other court officers relating to CCTV use. The claimant at the appeal meeting listed the following as issues; that the letter from Ms McKee was not signed; Ms Smylie was given preferential treatment by Ms McKee; Ms Smylie should not have been involved in the process beyond 21 October 2015 and was trying to influence the appeal by her actions; Ms Smylie informed NICTS relating to the allegation against him not the other way around; when the respondent was in receipt of the CCTV disc; whether Mr Melanophy had discussed any of the procedure with Ms Smylie or G4S staff, in response to which Mr Melanophy confirmed he had not; that Mr Melanophy could not be impartial, to which Mr Melanophy replied that he thought it was reasonable he as senior member could hear the appeal and the claimant agreed to continue; that information was not made available to him at the time of the appeal. Mr Melanophy then referred to the claimant's refusal when given the opportunity by Ms Doherty to review the CCTV footage in order to clear the allegation, the minutes record:

 

'IM What was the issue with CCTV?

RM My issue is that this is not what CCTV is for.

IM You wholly denied leaving the court site outside of your lunch period. Therefore did you leave site outside of lunch?

RM No.

IM CCTV footage will say what.

RM I don't know.

IM I need to find what the decision made by Lisa here is. Reads from outcome letter. If I play the footage will you view it.

RM No you cannot force me.

IM Explained data control measure. Do you believe the customer has the right to view.

RM I believe the footage is for crime prevention only.

IM We are looking at a H&S and Security matter. Lone worker.

RM No one had mentioned at the time.

IM Referred to letter which identified someone leave Strabane Court. Letter stated who were the staff on site. Can you explain these comments. 2 Officers scheduled. Asked did you leave site 20 August before time.

RM No I want to go through my appeal.'

 

Mr Melanophy asked the claimant for the appeal letter he was reading from and asked if there was anything the claimant wished to highlight and put to the claimant that it would take him some time to review the appeal letter from start to finish and for him to seek further direction regarding using the CCTV footage. The claimant in response referred to sign in & sign out sheets provided, management's reference to CCTV and that it was being abused to intimidate and threaten staff; that there was no policy regarding contacting line management when leaving site, this was not always done and sign out sheets were not put in place for this reason. Mr Campbell raised that no CCTV footage was made available in the initial process; and the matter should be made clear to all staff; it was stated nowhere that the claimant put security at risk or there was a H&S issue; and the outcome has been too harsh. The claimant then raised the airlock system in place on site which requires two people on site at all times to provide access. Mr Melanophy confirmed to the claimant he would arrive at a decision as soon as he could based on the information provided.

 

50.          By letter of 26 September 2016 Mr Melanophy upheld the original decision of 3 December 2015 to dismiss the claimant based on the allegation that he ' left site without authorisation and without completing the sign in/ sign out register on Thursday 20 August 2015.' In summary Mr Melanophy confirmed the reasons for his decision as follows:

 

•          He had reviewed CCTV footage made available and now he had met the claimant could confirm the claimant 'did indeed leave Strabane Court House on the morning of 20 August 2015 @ approx..08:28:14 returning approx..08:40' and that date and time stamp from the CCTV images were available and in line with the allegation.

 

•          The claimant had flatly denied throughout the whole process including the appeal meeting that he had left site that morning and Mr Melanophy found that he did not tell the truth during the investigation process and had known he had left hence his denial of permission to view CCTV footage during the investigation process and appeal meeting because he was aware the images would confirm he did leave site. Mr Melanophy was content that he had the correct permission as supported by the NICTS Records and Information Management Team to view the CCTV footage which he had done to establish if the disciplinary outcome of 3 December 2015 was correct using the evidence available at the time of the investigation and disciplinary meeting and which he found to be correct based on this confirmation. Mr Melanophy offered to make the CCTV footage available to the claimant.

 

•          He was content Ms Smylie the G4S NICTS Contracts Manager had the right to request evidence to support any complaint from her client about the service delivered; NICTS had considered their right to issue CCTV as per their letter of 25 August 2016 and copy policy supplied.

 

•          The Respondent did not have a CCTV policy in use in relation to the Courts Service Contract.

 

•          Mr Melanophy refuted the claimant's allegations of a 'witch hunt' by Ms Smylie and confirmed that the respondent's disciplinary process oversees each step and that he was more senior than Ms Smylie and Ms Doherty and suitable to hear the claimant's appeal.

 

•          Mr Melanophy considered Ms McKee believed by deduction that the claimant had left site, and from his viewing of CCTV could confirm that she was correct in her belief that it was the claimant.

 

•          Mr Melanophy considered there was no evidence to substantiate allegations of other staff not completing the signing out process there having been no prior allegation or ensuing investigation/ disciplinary process and therefore were significant differences in the claimant's case and furthermore that these allegations were not put to Ms Doherty.

 

•          The claimant confirmed he was aware of the requirement to sign in and out each time he left site which he failed to do and had denied throughout the whole process.

 

•          Mr Melanophy considered the outcome proportionate based on the facts available at the time to the disciplinary panel 'and that this is now confirmed to me via the CCTV footage.'

 

Mr Melanophy then set out in the outcome letter:-

 

'I am disappointed that you have not told the truth during the investigation, disciplinary and appeal process relating to this allegation, which now cements for me that the outcome was proportionate. I now believe that your pointing to other alleged incidents, alleged management witch hunt, alleged false and misleading information by the G4S Management on 18 & 24 November and to the tribunal is an attempt to divert from the crux of this whole process, in that you knew you had left Strabane Court House on the morning of 20 August 2015, without completing the sign in/out process and that you have been dishonest through this whole process.'

 

The offer of CCTV footage was again put and claimant advised of a second right of appeal. The claimant did not choose to exercise a second right of appeal.

 

LEGISLATION

 

51.          Under Rule 10 of the Industrial Tribunal Rules of Procedure 2005 an order may be made giving leave to amend a claim or response as part of the tribunal's general power to manage proceedings and regulate its own procedure. In Chapman and Others V Goonvean and Rostowrack China Clay Company Limited 1973 ICR 50 , NIRC, Sir John Donaldson stressed that tribunals should seek to do justice between the parties having regard to the circumstances of the case and Mr Justice Mummery in Selkent Bus Co Ltd V Moore 1996 ICR 836, EAT commented that the discretion should be exercised in 'a manner which satisfied the requirements of relevance, reason, justice and fairness in all judicial discretions'. A distinction is however to be drawn between circumstances where there may simply be the need to provide additional information about an existing claim and those where an amendment is necessary because it amounts to a new claim.

 

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

 

53.          Failure to complete the Statutory Dispute Resolution Dismissal and Disciplinary Procedures (SDP) where applicable will result in a dismissal being automatically unfair under Article 130 A ERO. The standard procedure consists of three steps; the employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting. The statutory procedure is a minimum requirement and even where the relevant statutory procedure is followed the dismissal may still be unfair if the employer has not acted reasonably in all the circumstances.

 

54.          Article 130(1) ERO provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

 

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

 

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

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

 

55.          Under Article 130(4) ERO 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.

 

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

 

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

 

2. In applying the Article an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

 

3. In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from that of the employer.

 

4. In many, though not all cases, there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another.

 

5. The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, if the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

 

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

 

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


" what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

 

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being 'sure', as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter 'beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion".

 

59.          Taylor V OCS Group Ltd [2006] IRLR 613 CA provides authority that procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of the procedure are sufficient to cure the earlier unfairness. It is for the tribunal to consider whether the overall process was fair, notwithstanding deficiencies at an early stage, in particular giving consideration to the thoroughness and open-mindedness of the decision maker.

 

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

 

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

 

Paragraph 9. When a potential disciplinary matter arises, the employer should make necessary investigations to establish the facts promptly before memories of events fade. It is important to keep a written record for later reference.

 

Paragraph 11. In certain cases, for example in cases involving alleged gross misconduct, where relationships have broken down or there are risks to an employer's property or responsibilities to other parties, consideration should be given to a brief period of suspension with full pay whilst an unhindered investigation is conducted. Such a suspension should be imposed only after careful consideration of the necessity for this. Employers should also consider alternative actions which would be more acceptable to the employee yet serve the same purpose as a suspension. An alternative to suspension might be the agreeing of a temporary transfer to other duties or another work station without loss of pay. Any action taken, including suspension on full pay, should be reviewed frequently to ensure it is not unnecessarily protracted. It should be made clear that any action taken is neither considered as disciplinary action nor an indication of blame or guilt.

 

Paragraph 15. The first step in any formal process is to let the employee know in writing the nature of what they are alleged to have done wrong. The letter or note setting out the allegation can also be used to explain the basis for making the allegation. It is important that an employee is given sufficient information to understand the basis of the case against them. If applicable, it would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. There may be exceptional occasions where an employer may decide not to provide copies of witness statements, and possibly other documents and information, particularly if a witness has expressed genuine fears. While actual statements and the names of witnesses may sometimes be withheld, the employee should still know the substance of these statements, if not the author. If information on the basis of the allegation is not provided in writing, this should be conveyed orally to the employee before any meeting takes place. While this approach is not required by law under the standard statutory dismissal and disciplinary procedure where the disciplinary action is a warning, it is good practice to take the 3-step approach regardless of any possible outcome of a meeting.

 

Paragraph 17. Where possible, the timing and location of the meeting [to discuss the problem] should be agreed with the employee. The length of time between the written notification and the meeting should be long enough to allow the employee to prepare but not so long that memories fade or that the delay becomes the basis for a grievance. The employer should hold the meeting in a private location, or off-site, and take reasonable steps to avoid interruptions.

Paragraph 18. At the meeting the employer should begin by restating the complaint against the employee and going through the evidence that has been gathered. The employee should be allowed to set out his/her case and answer any allegations that have been made. The employee should also be allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points about any information provided by witnesses. However, this does not mean that witnesses will normally be subject to cross-examination in the disciplinary hearing.

 

Paragraph 19. An employee who cannot attend a meeting should inform the employer in advance whenever possible. If the employee fails to attend through circumstances outside his/her control and unforeseeable at the time the meeting was arranged, e.g. illness, the employer should arrange another meeting. Employees should be made aware that, where it is reasonable to do so, decisions may be taken in their absence if they fail to attend re-arranged meetings without good reason. If an employee's 'statutory companion'.... cannot attend on a proposed date, the employee can suggest another date so long as it is reasonable and is not more than five working days after the date originally proposed by the employer. This five day time limit may be extended by mutual agreement.

 

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

 

Paragraph 36. Where an employee fails to attend a meeting held as part of the statutory discipline procedure without good reason the statutory procedure comes to an end. In these circumstances the employee's compensation may be reduced if he/she brings a successful complaint before a tribunal. If either the employee or employer has a good reason for non-attendance at the meeting, the employer must re-arrange the meeting. If either the employee or employer do not attend the rearranged meeting without good reason the employer need not arrange a third meeting and there will be no adjustment of compensation.

Paragraph 38. If an employer considers an employee guilty of gross misconduct and potentially liable for summary dismissal, it is still important to establish the facts before taking any action. A short period of suspension with full pay may be helpful or necessary, although the suspension should be imposed only after careful consideration and should be kept under review. It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any prejudgement.

 

Paragraph 51. The employer should contact the employee with the arrangements for the appeal meeting without unreasonable delay and inform him/her of his/her statutory right to be accompanied at the appeal meeting.

 

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

 

Paragraph 63. When drawing up and applying procedures employers should always bear in mind the requirements of natural justice. This means that, where possible, employees should be given the opportunity of a meeting with someone who has not been previously involved in the process. They should be informed of the allegations against them, together with the supporting evidence, in advance of the meeting. Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a right of appeal.

 

62. The Data Protection Act 1998 (DPA) sets out rules which CCTV operators must follow when they gather, store and release CCTV images of individuals. It is for the operator to have clear procedures regarding when to disclose information and when they do so the recipient of images must also adhere to the DPA in their handling of them. Enforcement is a matter for the Information Commissioner.

 

63. It is important 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: that is, 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.

 

APPLICATION OF THE LAW TO THE FACTS FOUND

 

64. Taking into account the claimant's written submissions prepared for the PHR hearing and relied upon by the claimant at the substantive hearing along with the respondent's skeleton argument of 26 October 2015 and written submissions of 22 November 2016:

 

AMENDMENT APPLICATION

 

65. We note that the claim form as currently drafted, in which the claimant alleges he was unfairly dismissed, in the 'DETAILS OF CLAIM' concentrates on the respondent's failure to give him the opportunity to attend an appeal hearing at which his main focus would have been improper use of data about him, from which we consider may be read that was not his only appeal point, and it further concludes, 'I now feel that they have no intention of hearing an appeal from me over what I believe was an unfair dismissal as they have failed to follow their own disciplinary procedures and my only redress is to seek to have them brought before an industrial tribunal.' The parties agreed at a CMD on 22 April 2016 that the main legal and factual issue in this case was whether the claimant was unfairly dismissed. The respondent accepts that the claimant could not bring a claim in respect of the details of the appeal at the time of presentation of the claim because an appeal had not been held. We consider that that the claim as drafted can be read allowing for the simple provision of additional information to include the further specific contentions made that; the dismissal was procedurally unfair and the dismissal was unfair because of improprieties in relation to the conducting of the appeal, and that, dismissal was a disproportionate sanction; the respondent's determination that the claimant was guilty of the relevant disciplinary offences(s) was a conclusion which brought the dismissal outside the range of reasonable responses, in light of all the evidence which was actually and potentially available to the respondent without the need for formal amendment. We are of the view in any event had formal amendment been necessary that greater hardship would have been caused to the claimant not to allow same in particular given the stage at which the claim was presented before an appeal hearing. The respondent's response is accordingly deemed to incorporate a denial in respect of all the legal and factual contentions arising from the further specific contentions made.

 

WAS DISMISSAL AUTOMATICALLY UNFAIR FOR FAILURE TO COMPLETE THE SDP?

 

66. The respondent's submission supported by Selvarajan V Wilmot and others [2006] EWCA Civ 862 is accepted that not completing the appeal in time is not always non-compliance. The standard SDP applied in this case and whilst there was considerable delay in the holding of an appeal hearing we find that the three steps of the standard procedure have been completed and the claimant's dismissal is not automatically unfair for a failure to do so.

 

WHAT WAS THE REASON FOR DISMISSAL?

 

67. We find that the respondent's genuine reason for the claimant's dismissal related to his conduct. Misconduct is a potentially fair reason for dismissal.

 

DID THE RESPONDENT BELIEVE THAT THE CLAIMANT WAS GUILTY OF THE MISCONDUCT ALLEGED?

 

68. The relevant point in time for our consideration is on conclusion of the appeal decision when the decision to dismiss was confirmed.

 

69. The tribunal are satisfied that on conclusion of the appeal process the respondent in the form of Mr Melanophy following viewing CCTV footage supplied by NICTS on which he was satisfied he had identified the claimant, held a genuine belief that the claimant, despite his denial of having done so, had left site on 20 August 2015 without permission and had failed to complete the sign in & out log. Mr Melanophy clearly also believed that the claimant, as Ms Doherty had concluded in the dismissal letter, had lied during the disciplinary process in breach of the implied term of trust and confidence.

 

DID THE RESPONDENT HAVE REASONABLE GROUNDS UPON WHICH TO SUSTAIN A BELIEF IN THE CLAIMANT'S GUILT FOLLOWING A REASONABLE INVESTIGATION?

 

70. It is the tribunal's role to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

 

71. The investigative process in particular is important to enable the employer to discover relevant facts upon which to decide whether an offence has been committed; furthermore to secure fairness by giving the employee an opportunity to respond to allegations made and to raise any relevant substantive defence and even if misconduct is established, to allow mitigating factors which might affect the appropriate sanction to be put forward.

72. We consider that at the final stage at which the respondent, in the form of Mr Melanophy, formed the belief in the claimant's misconduct, having on viewing CCTV images been satisfied that he had positively identified the claimant as having left site on the morning of 20 August 2015 as alleged and contrary to the claimant's denial, that the respondent had reasonable grounds to sustain a belief in the claimant's guilt of the misconduct alleged.

 

73. As to whether the respondent had at that stage carried out as much investigation into the matter as was reasonable in the circumstances we are of the view that there were procedural deficiencies in that the CCTV footage relied upon by Mr Melanophy and from which he considered he had identified the claimant thereon leaving site contrary to his denial was not put/ made available to the claimant before a final decision was reached and claimant allowed the opportunity to respond and to raise any relevant substantive defence or mitigating factors. Furthermore the suggestion that the claimant had weakened the security of the site by leaving a lone worker (albeit not an unreasonable conclusion as a consequence of the allegation put) was not specifically raised with the claimant prior to the appeal hearing.

 

WERE THE PROCEDURES ADOPTED AND PENALTY IMPOSED WITHIN A RANGE OF REASONABLE RESPONSES FOR A REASONABLE EMPLOYER IN ALL THE CIRCUMSTANCES?

 

74. We reject the claimant's contention that it was unreasonable of the respondent to have submitted evidence from uncorroborated telephone conversations between Ms Smylie and Ms McKee without an audio recording, but taking into account Paragraph 9 of the LRA Code, we do however consider that a written record of all conversations should have been properly kept by Ms Smylie of all relevant conversations had with Ms McKee for later reference.

 

75. Whilst the respondent failed to comply with its own requirements to complete a form PM75 in respect of the claimant's investigatory meeting we accept the respondent's submission that the Form was used purely for administration, that the relevant information normally contained thereon was adequately conveyed to the disciplinary

 

hearing officer orally by Ms Smylie and that there was no prejudice caused to the claimant by the non-completion of it.

 

76. The claimant contended that Ms Smylie failed to investigate a number of potential witnesses; failed to complete the investigation in a reasonable time; failed to notify the claimant of the allegations against him at the earliest opportunity; did not have a note taker present at all interviews; did not complete the disciplinary and appeal hearings within a reasonable time; failed to provide information to the claimant prior to his arrival at the first disciplinary hearing; suspended the claimant for 102 days and took an unreasonable time to investigate and conduct the disciplinary process. We note that when the claimant was suspended on 3 September 2015 he was only informed verbally of the intimidating behaviour complaint against him. On being suspended the claimant's verbal request to be transferred to Bishop Street was turned down. At that stage Ms Loughlin had already been interviewed and NICTS were informed the following day of the allegation of an employee leaving site. From suspension it took three weeks until written confirmation of the reasons for suspension were provided to the claimant which at that stage then included the further allegation of being off site and it took seven weeks until the investigatory meeting took place on 21 October 2015. No other staff were interviewed by the respondent in the meantime contrary to the respondent's contention that suspension was necessary to interview other staff without possible interference. The only other relevant action prior to the disciplinary hearing was the call between Ms Smylie and Ms McKee on 27 October 2015. The respondent failed to provide supporting evidence to the claimant before the disciplinary meeting on 18 November 2015 resulting in an adjournment to 24 November 2015. Interview/written statements were not obtained from Colin McCrea and Ms McKee until following the disciplinary hearing and first supplied to the claimant in the dismissal letter of 3 December 2015. In investigating the matter Paul McIntyre was not asked if the claimant had left site and Ciaran Ward was not interviewed. Written records of all telephone calls with NICTS were not kept. It was 102 calendar days between the claimant's suspension and dismissal. Taking account of paragraphs 9, 11, 15 & 63 of the LRA code and noting in particular the respondent's delay in informing the claimant fully of the nature of what he was alleged to have done wrong, not promptly making necessary investigations, not keeping written records for later reference, not initially considering alternative actions to suspension, not keeping the suspension brief and under review to ensure it was not unnecessarily protracted and in not conveying information on the basis of the allegation to the claimant before the disciplinary hearing, we accept the claimant's contention that the respondent's behaviour was not reasonable in relation to overall delay in the process irrespective of the other disciplinary process still running referred to by Ms Smylie and which was concluded with the appeal outcome letter of 3 October 2015.

 

77. We are not persuaded on balance based on the evidence presented that there was any collusion or deception as contended by the claimant on the part of Ms Smylie, the respondent's investigating officer. The claimant at the substantive hearing contended that CCTV images were actually in the respondent's possession at the disciplinary hearing and appeal hearing rather than obtained subsequently. The claimant and Mr Campbell's understanding that DVD's present at the disciplinary hearing contained relevant CCTV evidence is at odds with the respondent's case that relevant CCTV footage was not obtained until 5 September 2016. On balance we find it more probable than not, as supported by the correspondence from NICT of 25 August 2016, that CCTV footage of 20 August 2016 was not in fact obtained by the respondent from NICTS until 5 September 2016.

 

78. The claimant contented that Ms Smylie's letter of formal request to NICTS for CCTV evidence sought it on foot of a deception because he was a private citizen at that point rather than a current staff member and that weakening security as referred to in the respondent's CCTV request was not an allegation made to him. We consider overall that the terms of the request made by the respondent for the CCTV evidence was not purposely misleading, that the consequence of weakening security was not an unreasonable one for a reasonable employer to draw and overall the terms used in the respondent's description of the circumstances giving rise to the CCTV request fell within the reasonable band test.

 

79. We reject the claimant's contention that the respondent inappropriately used CCTV evidence against him arising from CCTV images having been inappropriately disclosed to the respondent and viewed by Mr Melanophy at the appeal stage despite this evidence not forming part of the disciplinary hearing. We accept the respondent's submission as per Arriva North West & Wales V Colburn [2005] UKEAT/0439/05 that the tribunal in determining whether or not a dismissal is fair must in an appropriate case have regard to material that emerges during the course of the internal appeal process and is proper for new material to be considered and taken into account at review appeal.

 

80. The claimant contended that the intended purpose of the CCTV footage kept by NICTS was not specifically for monitoring the respondent's employees and that the sign in & out log was intended for health and safety purposes. Workers are entitled to some degree of privacy in the work environment and information through monitoring should generally only be used for the purpose for which it was obtained unless it relates to an activity that no employer could reasonably be expected to ignore. Whether use of CCTV footage taken is appropriate in circumstances such as these is a question of proportionality and addressed by applying the reasonable band test. We consider overall Mr Melanophy's use of CCTV evidence at the appeal stage in this case was within the band of reasonable responses of a reasonable employer in the circumstances in particular in light of the assurance in NICTS's letter of 25 August 2016 of its belief that it was legitimate under the DPA for NICTS to disclose the images to the respondent for the purpose of the 'on-going disciplinary process for a member of G4S staff who left the site without permission thereby weakening the security of the site' and security and over-charging implications raised by NICTS as a result of being informed of the allegation against the claimant together with Mr Melanophy having provided the claimant the opportunity to watch the CCTV recording at the appeal hearing to vindicate him, which was refused.

 

81. We reject the claimant's contentions that dismissal was a disproportionate sanction given that that there was no written procedure on how to obtain permission to leave site, no superior staff member on site in Strabane to ask for permission and claimant's treatment inconsistent with that of other staff members who commonly left site without obtaining permission and who on occasion failed to complete the sign in & out log. We find that the respondent's consideration of these points and conclusion that dismissal was an appropriate sanction fell within the band of reasonable responses given that; the claimant clearly knew of the requirement to complete the sign in & out log and the seriousness of a failure to comply and which had been recently highlighted to the claimant in an investigatory meeting on 19 May 2015; the claimant put to the respondent that he did not leave site which is a different scenario from having done so without permission on account of not knowing how to do so and so a lack of a written procedure or superior on site was of little relevance; no specific evidence to substantiate inconsistent treatment was presented at appeal nor put to Ms Doherty; the balance of evidence from Ms Loughlin, Ms McKee and the CCTV evidence viewed by Mr Melanophy gave rise to a genuine belief by the respondent that the claimant had lied throughout the disciplinary process in breach of the implied term of trust and confidence in his contract of employment.

 

82. The claimant clearly conveyed prior to the proposed appeal meeting in Belfast that he was at that time unable to travel or drive any distance for medical reasons and we reject the respondent's contention that the claimant failed to attend the appeal as scheduled. We also reject the contention that the claimant failed to provide medical evidence whereas in fact the claimant clearly offered to provide confirmation from his doctor if required and no request for medical evidence was made by the respondent if it doubted his assertion. The claimant also informed the respondent that his union representative was unavailable until after 4 January 2016. The respondent did not then reply to the claimant to propose or endeavour to re-arrange the appeal hearing for a closer location or on a date after 4 January 2016. We reject the respondent's contention that it was then incumbent upon the claimant to provide the respondent with specific availability dates and in the meantime there was no obligation on it to re-schedule. Had the claimant not presented a claim to the tribunal it appears the appeal hearing may not have otherwise eventually taken place in September 2016. Taking account of requirements to rearrange a proposed meeting where with good reason the employee cannot attend and to provide a right of appeal without unreasonable delay in paragraphs 19, 36, 51 and 63 of the LRA Code we are of the view, in the circumstances of this case that the respondent's handling overall regarding re-scheduling of the appeal fell outside the band of reasonable responses of a reasonable employer.

 

83. We consider that Mr Melanophy was impartial in his handling of the appeal and generally reasonable in his handling of it save that the allegation of having weakened security was not put to the claimant prior to the appeal hearing nor CCTV footage provided, on which Mr Melanophy believed he had identified the claimant, before Mr Melanophy came to his decision. We do not consider overall that the appeal provided by the respondent in this case was however sufficient to cure overall earlier unfairness, in particular in relation to the provision of an appeal hearing until prompted by tribunal proceedings.

 

84. In light of the above matters we are of the view that overall procedures adopted by the respondent fell outside a band of reasonable responses for a reasonable employer in all the circumstances of the case.

 

SUMMARY CONCLUSION

 

85. Arising from the above procedural deficiencies we find that the respondent's dismissal of the claimant was unfair under Article 130 of the ERO.

 

THE LAW RELEVANT TO REMEDY

 

86. Article 145 ERO provides for remedies where the grounds of an unfair dismissal complaint are found well founded. Provision for compensation by way of a basic and compensatory award is set out at Article 152 and for the calculation and reduction thereof at Articles 153 to 157. In particular Article 156 (2) provides:

 

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly ."

And Article 157(6):

 

"   Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

 

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

 

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

 

FINDINGS OF FACT AND CONCLUSIONS STRICTLY RELEVANT TO REMEDY ONLY

 

89. The claimant sought compensation only by way of remedy.

 

90. We accept Mr Melanophy's evidence that CCTV evidence viewed by him showed the claimant, contrary to his denial, leaving site on the morning of 20 August 2015.

 

91. The claimant had a current first and final written warning for misconduct.

 

92. We find that if correct procedures had been followed in respect of the misconduct alleged, in particular completion of the process without delay and the claimant provided CCTV footage and allowed the opportunity to comment and to offer any defence or mitigation following Mr Melanophy's viewing thereof before a final decision was made, that it is on balance more probable than not that the claimant would still have been dismissed in any event. We consider that a Polkey reduction of 70% is appropriate to reflect the likelihood that the claimant would have been dismissed in any event.

 

93. We find that the claimant's behaviour of leaving site without complying with the respondent's requirement to complete the sign in & sign out log despite his clear knowledge of the requirement and disciplinary consequences and which had recently been highlighted to him, along with his continued denial to the respondent of having done so, was foolish and unreasonable in the circumstances and as such the claimant was guilty of blameworthy conduct that wholly caused the respondent's decision to dismiss. We consider that a 100% reduction is just and equitable to reflect the claimant's contributory conduct and in light of which we do not propose to set out a full calculation of these awards before deductions to them.

 

CONCLUSION

 

94. Arising from procedural flaws in the disciplinary process we find that the claimant was unfairly dismissed by the respondent under Article 130 of the Employment Rights (Northern Ireland) Order 1996. In respect of remedy taking into account the 70% likelihood that the claimant would still have been dismissed in the absence of procedural flaws and 100% contributory conduct, the basic and compensatory awards are reduced to nil.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 24 & 25 November 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: