Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 583/16

 

 

 

CLAIMANT: Eamonn McGrath

 

 

RESPONDENT: Southern Health & Social Care Trust

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The case shall now be reconvened for a hearing on remedy.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Leonard

Members: Mrs N Wright

Mr B Hanna

 

Appearances:

The claimant was represented by Mr Friel, Barrister-at Law, instructed by McCartan Turkington Breen, Solicitors.

The respondent was represented by Ms Finnegan, Barrister-at Law, instructed by Solicitor of the Directorate of Legal Services.

 

1.             By claim forms dated, respectively, 3 February 2016 and 8 April 2016, the claimant claimed unfair dismissal and provided further details. The claimant also made another claim which does not concern this tribunal and which is being dealt with as part of a multiple case-managed hearing. By response to the claim dated
6 June 2016, the respondent Trust denied the claim in its entirety and provided further details.

 

2.             The hearing was subject to case management by the Vice-President who made directions for exchange of witness statements and for the listing of the matter. At the outset of the hearing, it was agreed that the tribunal was to deal solely with the issue of whether or not the claimant was unfairly dismissed by the respondent and only if a finding of unfair dismissal were to be made would the matter then require to be listed for a hearing on remedy. Accordingly the tribunal had to determine the issue of whether the claimant was unfairly dismissed by the respondent on the basis of the evidence and any relevant facts found and by the application of the law. The tribunal accordingly received witness statements from the claimant and, on behalf of the respondent, from Ms Laura Crilly, Mrs Jenny Johnson, and
Mrs Helen Walker and the tribunal also received into evidence an agreed bundle of documents running to some 224 pages. The usual procedure was followed at hearing in that the witnesses adopted their respective witness statements and were then subject to cross-examination and to re-examination, with the tribunal asking questions for the purpose of clarification of the evidence and issues in the case.

 

3.             The tribunal on the balance of probabilities, made the following determinations of fact, relevant to the issues:-

 

3.1          The claimant commenced employment on 3 June 1991. At the relevant time he was employed as a Senior Support worker by the respondent Trust. The claimant had a clear disciplinary record prior to certain events occurring on 17 June 2015, when the claimant was detected as being under the influence of alcohol at work upon that date. The claimant made a full concession and admission in respect of this matter at the time. He was thereafter subjected to a disciplinary process taken under the respondent's Disciplinary Procedure. A copy of the respondent's Disciplinary Procedure, dated 1 April 2015, was provided to the tribunal. Appendix 1 thereto provides for Disciplinary Rules, including listing (non-exhaustive) examples of what constitutes gross misconduct and, at Appendix 2, the composition of panels, including those for gross misconduct hearings and appeals. At Paragraph 3 (g) of the Disciplinary Procedure, the following appears, " In deciding upon appropriate disciplinary action, consideration shall be given to the nature of the offence, any mitigating circumstances and previous good conduct". That principle is echoed at Paragraph 6.4 of the Disciplinary Procedure, where the following appears, "Before deciding on the appropriate disciplinary action, the Disciplinary Panel should consider any mitigating circumstances put forward at the hearing and take account of the employee's record". At Paragraph 6.5(c) of the Disciplinary Procedure, it is provided, " Dismissal - dismissal will apply in situations where previous warnings issued have not produced the required improvement in standards or in some cases of Gross Misconduct". The stated procedure therefore envisages the sanction of dismissal being applicable in the event that a previous warning has failed to produce the required improvement or in some, but expressly not in all, cases of gross misconduct.

 

3.2          An investigation was conducted by the respondent's personnel under the relevant investigatory procedure, as specified in the Disciplinary Procedure. In this procedure the claimant was represented by Mr Brian Smyth of NIPSA. The claimant was placed, in the interim and pending this investigatory process proceeding, under a precautionary suspension. This was confirmed to him by letter dated 18 June 2015 from Mrs Hazel Somerville, Supported Living Manager of the respondent. In that letter, an issue of concern was specified as being: " That on 17 ^th June 2015, whilst at work you appeared to be under the influence of alcohol". By letter dated 25 June 2015, Ms Laura Crilly, the respondent's Senior HR Advisor, confirmed to the claimant that the matter would be referred onward to a formal disciplinary panel for consideration. Statements were taken as part of the investigation from a number of the respondent's personnel, including from the claimant. The claimant's statement, in the copy placed in evidence and seen by the tribunal, is unsigned but is dated 22 June 2015. In providing information to the investigation, the claimant amongst other matters in his statement alluded to specific circumstances surrounding the incident which had occurred on 17 June 2015; he alluded to the fact that his mother-in-law, regrettably, was terminally ill and to his wife also being ill.

 

3.3          The claimant was referred by the respondent to Dr Alan Black, a Senior Consultant in Occupational Health. He was seen by Dr Black on 30 June 2015. Dr Black sent a report dated 7 July 2015 to Ms Cara Murchan who was the claimant's line manager. Dr Black in his report recorded that the claimant had consented to participation in the respondent's Alcohol Monitoring Programme and that the claimant had had his first blood test checked on the date upon which he had been seen by Dr Black. This testing constituted part of the Alcohol Monitoring Programme procedures. The third paragraph of Dr Black's report dated 7 July 2015 reads as follows:-

 

"I will continue to monitor Mr McGrath by reviewing him again in four weeks' time when the test will be completed. Meanwhile, I would advise that he remains fit for work on the basis that he has reported remaining abstemious since 18 June. I have advised Mr McGrath that I will remove him from the alcohol monitoring programme should he fail to attend any of his appointments without giving a reasonable explanation".

 

A review appointment was then arranged for Thursday 30 July 2015 at 2.00 pm.

 

3.4          The claimant duly attended this next scheduled appointment with Dr Black on 30 July 2015. Dr Black then sent a report dated 3 August 2015 to Ms Murchan. In that report Dr Black indicated that he was pleased with the progress that the claimant had made and stated that a review appointment would be made for early September 2015 after the claimant's return from annual leave. The next appointment was fixed for 9 September 2015. This September appointment was indeed to be a significant appointment, due to events that subsequently transpired.

 

3.5          Ms Crilly, the respondent's Senior HR Advisor, together with Mrs Tracey Welch, Locality Supported Living Manager with the respondent, prepared an investigation report concerning the 17 June 2015 matter. This investigation report was dated "August 2015". It runs to some 11 pages and an unsigned copy was provided to the tribunal. The report is divided into sections entitled and comprising: introduction and background; approach and methodology; issue of concern; facts and findings established and conclusions; and the summary of findings of the investigation. In brief, Mrs Welch and Ms Crilly, in their conclusions, requested the disciplinary panel to consider an allegation against the claimant which in their view amounted to gross misconduct, in line with the respondent's disciplinary procedures. This allegation was expressed thus: " That on 17 ^th June 2015, Eamonn McGrath was at work under the influence of alcohol". The claimant was provided with a copy of the investigation report. A letter dated 24 August 2015 from Ms Crilly extended an invitation to the claimant to attend a disciplinary hearing on 1 September 2015, with the disciplinary panel members identified as being Mrs Jenny Johnston, Assistant Director of Human Resources and Mr Dessie Cunningham, Head of Supported Living. This letter mentioned the disciplinary panel having been constituted to consider disciplinary sanctions up to and including dismissal. The claimant was advised of his right to attend the hearing accompanied, if desired, by his trade union representative or by a work colleague.

 

3.6          The disciplinary hearing had been originally scheduled to take place on
1 September 2015. However, due to the unavailability of the claimant's representative, Mr Smyth, the hearing was then arranged for Monday
7 September 2015. The claimant requested that he might be excused from attendance due to the fact of his mother-in-law being very unwell. It was arranged that the claimant would be represented by Mr Smyth at the hearing and that the claimant would not attend personally.

 

3.7          One significant issue in the case relates to the precise nature of any arguments or representations advanced on behalf of the claimant by Mr Smyth at the disciplinary hearing. In her evidence, Ms Crilly, who was the investigating officer attending the hearing, stated that Mr Smyth confirmed to the disciplinary panel that the claimant was abstaining entirely from alcohol. Ms Crilly was closely questioned on this in cross-examination at hearing. It was put her that in the witness statement of
Mrs Johnston it was stated that Mr Smyth had advised the disciplinary panel that the claimant had been "abstemious" since the events of 17 June. Ms Crilly indicated that she had understood this to mean "abstinent". Ms Crilly indicated that she had taken what Mr Smyth said on behalf of the claimant as meaning that he had not taken alcohol since the 17 June events. The claimant questioned the provenance of this information alleged to have been imparted by Mr Smyth to the disciplinary panel and whether the disciplinary panel had been properly entitled to conclude, based on Mr Smyth's submission, that the case was that the claimant was entirely abstinent from alcohol from 17 June up to the date of the disciplinary hearing. Thus the claimant sought to challenge that there had been any assertion or case made by Mr Smyth which might have been reasonably interpreted as being categorical that the claimant was by then (7 September 2015) abstaining entirely and, further, that he had been abstaining entirely from alcohol ever since the events of 17 June 2015, which events had led to the disciplinary hearing. The tribunal will address that specific matter further below, as it is one of the key issues in the case.

 

3.8          The claimant's evidence to the tribunal was that, on the afternoon of
7 September 2015, that being the disciplinary hearing date and after the hearing had concluded, the claimant had received a telephone call from Mr Smyth. In this call, Mr Smyth confirmed to the claimant that the claimant would be returned to a role in Supported Living, so that he would no longer be a lone worker. Mr Smyth also confirmed that the claimant was to be downgraded from Band 5 to Band 3 for a period of one year and that a formal warning would be issued by the respondent to the claimant and would remain on the claimant's personnel record for a period of two years. The claimant indicated to the tribunal that, at the time, he had felt disappointed with the downgrading; however he was relieved that the matter was finally over and that he would continue working for the respondent. There was no evidence that Mr Smyth had conveyed any further or specific information about the outcome of the disciplinary hearing other than the forgoing information and the tribunal's finding, based upon the evidence, is that he did not do so. The outcome of the 7 September 2015 disciplinary hearing was then recorded in a letter from
Mrs Johnson to the claimant, which was dated 9 September 2015. That letter was dispatched by post to the claimant. It was most probably received by the claimant either on 10 or 11 September 2015, although there was some doubt about the precise date of receipt. As considerable significance attaches to this issue and to the timing of events around this specific period, it must be noted that, whilst the disciplinary hearing proceeded and concluded on 7 September, the outcome notification letter addressed to the claimant was not issued until 9 September. That letter, having been sent by post, was certainly not received by the claimant on
9 September, but probably one or two days later. Included in the outcome letter is the following statement:-

 

" The panel also agreed that you should be downgraded to a band 3 for a period of one year to relieve you of the higher level of responsibilities of a band 5, this to be reviewed following a period of one year following assurance that your issues of alcohol dependency have satisfactorily been addressed. In addition you are required to take part in the alcohol programme and attend all Occupational Health appointments so as your commitment can be monitored" . The letter then continues: " It is important you understand that any further breaches of discipline may result in more serious disciplinary action being taken against you. Given this disciplinary sanction on file, it is likely any further breach would result in your dismissal".

 

The claimant was afforded a right of appeal, but chose not to appeal this disciplinary sanction.

 

3.9          The claimant was scheduled to have an appointment with Occupational Health on 9 September 2015. On 8 September 2015 the claimant initially contacted Occupational Health directly with a view to seeking a postponement of the following day's appointment, but the claimant was informed that he could not make a postponement request directly to Occupational Health and the claimant was then referred to his line manager in that regard. The claimant then contacted his line manager, Ms Murchan, requesting a postponement of the following day's appointment. The claimant's reason for this request, indicated to Ms Murchan, was that the claimant's mother-in-law's health had deteriorated significantly. He indicated that his mother-in-law was terminally ill and was residing with the claimant and with his spouse. Ms Murchan's evidence statement dated 11 November 2015, obtained by the respondent for the purposes of a second disciplinary hearing, recounts that she was aware that the claimant was to attend an appointment at Occupational Health (on 9 September) but that she was not aware that the claimant was participating in an alcohol monitoring programme. The statement confirms that the claimant had contacted her on 8 September to say that his mother-in-law was terminally ill and had said "we are sitting with her" and that Ms Murchan had assumed that death was imminent and the claimant had stated that he would not be able to leave his wife at such a critical time.

 

3.10       The claimant was advised by Ms Murchan that his request could indeed be accommodated in the light of the particular circumstances which the claimant had described. As he had been informed (at least at that point in time) that he was not required to attend the appointment with Occupational Health for the following day,
9 September, the claimant felt free to take an alcoholic drink and he proceeded to consume some alcohol with his brother-in-law. The claimant's perception in so doing, as he explained to the tribunal, was that he was not required to abstain completely from alcohol; indeed he had consumed alcohol upon such occasions as attending a barbeque and also whilst on vacation a short time before this. From the claimant's perspective, he felt that he had properly and fully engaged, in a voluntary capacity, with the respondent's Alcohol Monitoring Programme; he felt that he had made good progress as far as any previous assessment on the part of Dr Black was concerned.

 

3.11       On the morning of the following day, 9 September, the claimant received a telephone call from his NIPSA representative, Mr Smyth. Mr Smyth was insistent that the claimant indeed had to attend the Occupational Health appointment arranged for that day or, as Mr Smyth stated to the claimant, it was possible that the claimant might be dismissed from employment. The claimant then received a second telephone call, this time from Ms Murchan. Ms Murchan apologised for what she had previously stated to the claimant and indicated that she was now being advised that the claimant had to attend the appointment with Occupational Health in order to have his bloods taken. Upon the position being made fully clear to him by Ms Murchan, the claimant duly complied with the request to attend the appointment on 9 September. Whilst his appointment that day with Dr Black had been assigned to another person, nonetheless he did have his bloods taken. The claimant thereafter attended a further appointment with Dr Black on 23 September. After this latter appointment, Dr Black dispatched a report dated 29 September 2015 to Mrs Welch. It is necessary to mention the material content of Dr Black's report in full. It reads:-

 

"Background

 

Mr McGrath was reviewed again by myself today at the Occupational Health Department. As you know Mr McGrath is attending the department as part of the Alcohol Monitoring Programme. I have discussed with Mr McGrath the results of his most recent blood test and have stressed to him my concerns regarding his health and alcohol intake. I understand from Mr McGrath that he avoids drinking the day before working and also avoids drinking at work. I have also not received any reports from yourselves suggesting that there have been any further problems at work. This being the case, I would view Mr McGrath as still being fit to work and nonetheless have substantial concerns which I have shared today with Mr McGrath about his ongoing drinking and have once again stressed the importance of avoiding alcoholic drink altogether. Bloods were checked again today and he will be reviewed again in four weeks".

 

3.12       A review appointment was then arranged with Occupational Health on 29 October 2015. The claimant attended this further appointment with Occupational Health on that date. Dr Black thereafter issued a report dated 30 October 2015 to Mrs Welch. In this latter report, Dr Black indicated that he had discussed with the claimant the claimant's previous blood test results and Dr Black was pleased to note a modest improvement. The claimant himself had reported a reduction in his alcohol intake and (as far as Dr Black was concerned) this would seem to be supported by the blood tests. Dr Black observed that he had once again discussed with the claimant the concern that the claimant was drinking at all. Nonetheless the claimant was confirmed as remaining fit for work. A further appointment with Occupational Health was arranged for 26 November 2015.

 

3.13       The tribunal shall now deal with the circumstances of the second disciplinary process. The claimant received a letter dated 14 October 2015 from Ms Crilly entitled, "Investigation under the Trust's disciplinary procedures". This letter was sent by Ms Crilly following a meeting held on the previous day with the claimant. An issue of concern was expressed in the letter, which was stated as follows:-

 

" That you attempted to avoid an appointment with Occupational Health on
9 ^th September 2015, as part of the Trust's Alcohol Monitoring Programme which you previously committed to participating in, and in doing so you have called in to question your honesty and integrity".

 

The letter indicated that a disciplinary investigation was to proceed. This was to be conducted, again, by Ms Crilly and Mrs Welch.

 

3.14 The claimant provided a statement to the disciplinary investigation (an undated and unsigned copy of which was provided in evidence to the tribunal). This statement alluded to discussions that the claimant had had as part of the formal investigation procedure, indicating that he had met on 21 October 2015 with Mrs Welch and
Ms Crilly as part of a formal investigation, accompanied by Mr Smyth of NIPSA. The claimant recounted in his statement that he had gone on holidays with his family on 18 August, returning on 26 August. He indicated that he would have consumed alcohol every day whilst on holiday, maybe two or three pints in the afternoon and then a half bottle of wine at night over dinner. He indicated that he felt that this was not serious consumption and that he had informed Dr Black about this. He also indicated in the statement that he would have had an occasional social drink before going on holiday, for example, if he was attending a barbeque he would have had a few beers. In the statement, the claimant also indicated, when asked why he had cancelled his Occupational Health appointment on 9 September, that on 7 September his mother-in-law's doctor had conducted a visit, as the lady's health had deteriorated significantly whilst the claimant had been away on holiday. The claimant indicated that his mother in law "had only been given days" when she was discharged from hospital on 2 September. When the doctor had visited her again on 7 September, there had been no significant change, but she had appeared to deteriorate following day, that being 8 September. The claimant had had further dealings that day with medical personnel and then he had telephoned Ms Murchan at approximately 2:40 pm on 8 September to see if it would be possible to postpone the appointment with Occupational Health scheduled for the following day,
9 September. It was in this context that Ms Murchan, as the claimant's line manager (at least initially) agreed to the claimant not attending the following day's appointment. The claimant in his statement indicated that he had disclosed the full extent of his alcohol consumption. He also stated that he did have a few beers on 8 September.

 

3.15  Ms Murchan, as mentioned above, in her written statement prepared for the (second) disciplinary hearing, confirmed that the claimant had contacted her on 8 September to state that his mother-in-law was terminally ill and that the claimant had said, "we are sitting with her". Ms Murchan, later that day, 8 September (or possibly the next day), was contacted by Mrs Johnston, who indicated that the claimant's appointment should not have been re-scheduled as he was required to attend as part of the programme. Ms Murchan then contacted Occupational Health again, but was informed that the appointment had been given away. She then spoke with Ms Catriona Campbell Head of Occupational Health and it was agreed that the claimant could attend at Occupational Health the following day as arranged and that his bloods would be taken, but he would not be seen by a doctor.
Ms Murchan then telephoned the claimant on the morning of 9 September and advised the claimant that she had been informed that it was essential that the claimant attend the appointment that day to have his bloods taken. Ms Murchan apologised to the claimant, but stated that she had not been aware of the programme and of the fact that it was essential for the claimant to attend the appointment that day.

 

3.16 The second disciplinary hearing took place on 19 November 2015. This related to the subject matter of the letter dated 14 October 2015, mentioned above. The respondent's disciplinary panel, again, included Mrs Johnston as Assistant Director of Human Resources, accompanied by Mr Cunningham, Head of Supported Living Services. It will be noted that these were the same people who had constituted the first disciplinary panel conducting the hearing of 7 September 2015. The claimant was accompanied on 19 November 2015 by Mr Brownlee, Regional Officer of NIPSA. Mrs Walsh and Ms Crilly, as investigating/presenting officers (again the same personnel as had fulfilled that role in respect of the first disciplinary hearing), attended and presented the case against the claimant. The disciplinary hearing was convened to consider the following specified allegations:-

 

Allegation 1: that you failed to demonstrate commitment to addressing your alcohol dependency, despite previous assurances to do so.

 

Allegation 2: that you attempted to misrepresent the true level of your alcohol consumption to your employer as part of the Trust's Alcohol Monitoring Programme, and in doing so have called in to question your honesty and integrity.

 

3.17 The claimant indicated to the tribunal that he was somewhat surprised that the matter was proceeding to a disciplinary hearing; he was unclear as to the manner in which the allegations had been framed. Regrettably, on account of what appears to be a settled policy on the part of the respondent (which policy it must be said the tribunal finds to be somewhat unfortunate) no written minutes were taken of the disciplinary hearing, nor was any other detailed recording made. The explanation afforded on behalf of the respondent was that this was normal practice; the view was taken by the respondent that anything of significance arising at any disciplinary hearing would have been effectively encapsulated within the outcome letter. According to the evidence available to the tribunal, the case made by the claimant and by his representative, Mr Brownlee, at the (second) disciplinary hearing was that the claimant was fully committed to the Alcohol Monitoring Programme and indeed that the claimant had attended all appointments and that Dr Black had felt that the claimant was indeed making good progress. The claimant's case, specifically, was that at no stage had he been advised, or indeed required, to abstain from alcohol entirely. He had never been asked to enter into any formal contract with the respondent regarding the Alcohol Monitoring Programme. It had never been fully explained to him what was expected of him, save that he should try and address his levels of drinking and that he should attend the Occupational Health appointments. In the course of the disciplinary hearing, Mr Brownlee expressly voiced concerns regarding the composition of the disciplinary panel given, as Mr Brownlee observed, that it was composed of the same two persons who had dealt with the first disciplinary hearing matter on 7 September 2015. Notwithstanding these concerns being voiced by Mr Brownlee, the disciplinary hearing proceeded with the panel, as constituted, in respect of these specified disciplinary charges.

 

3.18 The claimant was notified of the outcome of the disciplinary hearing by letter dated
7 December 2015. That letter notified the claimant that the disciplinary panel had decided that the claimant should be dismissed from employment, with effect from
8 December 2015, with the claimant receiving 12 weeks' payment in lieu of notice, plus payment for outstanding annual leave. In his evidence to the tribunal, the claimant indicated that he was shocked by this outcome. As he saw it, he had worked for the respondent for 24 years; he had an impeccable disciplinary record up to 2015 when, due to circumstances in his private life, he began drinking more. He felt that the disciplinary panel had failed to take into account all of the relevant facts and that the panel had failed to take into account any of the mitigating factors. He was of the view that the disciplinary panel had entirely failed to consider any alternatives to dismissal and that the decision was quite unfair.

 

3.19 Examining the outcome letter of 7 December 2015, in respect of "Allegation 1" (" that you failed to demonstrate commitment to addressing your alcohol dependency, despite previous assurances to do so") Mrs Johnston mentioned in the letter that the panel at the previous disciplinary hearing had been given an assurance by Mr Smyth that the claimant had come to see that he was increasingly dependent on alcohol. It was noted that the claimant had asked for a postponement of the appointment scheduled for 9 September and that this appointment was scheduled two days after the (first) disciplinary hearing where the claimant had been given a final written warning and the claimant was first advised that he must attend the Alcohol Monitoring Programme. The letter further stated that, at the Occupational Health meeting held on 30 June, the claimant had reported that he had been abstemious since 18 June. At that time Dr Black had been pleased with the claimant's progress. After the appointment of 9 September (where the claimant has his bloods only taken but he was not seen by Dr Black) the letter proceeds to record that it was noted that Dr Black had stated that he had substantial concerns, which he had shared with the claimant, about the claimant's ongoing drinking and that
Dr Black had once again stressed the importance of avoiding alcohol altogether. Here it is observed that the letter appears to be confusing, or at least not making fully clear, that there was a blood-testing only appointment attended by the claimant on 9 September and, later, an appointment with Dr Black attended by the claimant on 23 September, after which Dr Black issued a report dated
29 September 2015. The panel proceeded in the outcome letter to record its disappointment that the claimant had started drinking again, including the confirmation that the claimant had been drinking whilst on holiday in August. In the outcome letter the panel sought to reference what it stated to be assurances given by Mr Smyth to the September disciplinary panel on behalf of the claimant that the claimant was committed to the programme and abstemious from drinking, but he had in fact started drinking again and was continuing to drink. The panel was concerned that the claimant had been drinking on 8 September and it was regarded by the panel as being remarkable that the claimant had drunk on this day following his request and approval (given by Ms Murchan but later rescinded) to postpone the Occupational Health appointment scheduled for 9 September. The panel expressed the view that the claimant's actions did not constitute adherence to and commitment to the Alcohol Monitoring Programme. The claimant had abstained in October, but there was no commitment that this would continue; the claimant was not in control of his drinking. The panel indicated that it noted that the claimant now felt that he did not have an alcohol dependency and expressed disappointment by what appeared to be reduced insight into the claimant's condition, which (insight) had formed part of the reason why the claimant had been given a final written warning and had not been dismissed at the hearing in September. The panel therefore was of the view that the first allegation (failing to demonstrate commitment to addressing alcohol dependency despite assurances) was upheld.

 

3.20 In respect of "Allegation 2" (" that you attempted to misrepresent the true level of your alcohol consumption to your employer as part of the Trust's Alcohol Monitoring Programme, and in doing so have called in to question your honesty and integrity") the outcome letter of 7 December 2015 noted the contact made between the claimant and Ms Murchan and noted that, when asked by the investigation team, the claimant had admitted that if he had known he was going to have to attend the (Occupational Health) appointment he would probably not have taken alcohol the evening before. The panel were of the view, in the light of this, that the claimant did try and avoid his monitoring assessment and that he had felt free to drink on 8 September because he had thought he had been able to cancel the appointment. The perception of the panel of an attempt to avoid the Occupational Health appointment on 9 September, brought into question the claimant's honesty with his employer. The panel expressed itself to be deeply concerned by the lack of honesty and true commitment to the Programme and equally the claimant's lack of acceptance that he had a problem with alcohol. The letter stated that the claimant's role was one which required that the claimant support vulnerable people and that the respondent must have confidence in the claimant's ability to fully carry out the duties of the post. The panel did not have confidence that this was the case. As the claimant already had a live final warning on his file in relation to being under the influence of alcohol whilst on duty, the risk posed by the claimant's actions to tenants and colleagues and the concerns as to the claimant's honesty and integrity and the claimant's return to a pattern of drinking and the underlying impact of this on the respondent's ability to have faith and trust in the claimant, was no longer sustainable. The letter confirmed that panel had therefore decided that the claimant would be dismissed from employment with effect from 8 December 2015, with a 12 week payment in lieu of notice plus payment for outstanding leave. It was indicated that the claimant had a right to appeal the decision.

 

3.21 By letter dated 9 December 2015 the claimant requested an appeal. A disciplinary appeal hearing was thereafter arranged to take place on 19 February 2016 and that arrangement was confirmed to the claimant by letter dated 1 February 2016 from Ms Crilly. The appeal panel was to comprise Mrs Helen Walker, the respondent's Assistant Director of Human Resources - Acute Services and Mr Miceal Crilly, the respondent's Assistant Director of Disability Services. The allegations set out in the previous disciplinary process, appealed against, were repeated in the
1 February 2016 letter inviting the claimant to attend the appeal. It was indicated that the appeal hearing would constitute a "full rehearing" of the case.

 

3.22 Mr Brownlee, on behalf of the claimant, objected to the appeal panel being provided with some specific information that had been provided to the disciplinary panel below, this being a witness statement provided by the claimant to the previous (the first) disciplinary hearing. Mr Brownlee's contention was that this bore no relevance to this appeal hearing. Mr Brownlee provided a detailed written submission to the appeal panel, which submission ran to some 21 pages. In this submission
Mr Brownlee expressly drew the appeal panel's attention to a number of matters. Firstly, Mr Brownlee submitted that it could never be right that the same people would sit on a second disciplinary panel (as have occurred in this case) and would bring to bear their prejudice (in the second proceedings). Mr Brownlee mentioned that a grievance had been lodged concerning the makeup of the panel and he provided detail of stated procedural irregularities, but the respondent had refused to hear this grievance. Mr Brownlee stated that he had requested management to remove certain documents from their bundles, as these did not pertain to the case, but this request was rejected. Mr Brownlee indicated in the detailed written submission that he would endeavour, in the course of the appeal, to establish that the hearing was procedurally wrong and that any dismissal would be automatically unlawful and that the claimant had had his human rights violated; it would be demonstrated that the whole investigation was based on a false premise; that it could be proved that the claimant's mother-in-law was seriously ill; that the claimant's wife was aware of the position in which the claimant found himself; that the claimant was medically fit to work; that he was performing adequately at work; that there was a reasonable excuse to postpone the (9 September) appointment with Occupational Health; that the claimant had made every possible effort to demonstrate his commitment to addressing his dependency on alcohol; that nowhere in the documentation was there an expectation that the claimant would totally abstain from alcohol; and that the claimant had been open and honest with his employer.

 

3.23 The appeal hearing proceeded on 18 April 2016, with a panel comprising
Mrs Walker and Mr David Douglas, Assistant Director of Family Support and Safeguarding. It is understood by the tribunal that Mr Brownlee on behalf of the claimant included the foregoing arguments in his oral submissions to the panel and the panel is understood to have had Mr Brownlee's written submission. By letter of 6 May 2016 addressed to the claimant, Mrs Walker indicated the outcome of the appeal hearing. The letter made reference to the claimant being under the influence of alcohol at work on 17 June 2015, which had been dealt with under the formal disciplinary procedure. The claimant had chosen not to attend the hearing on 7 September. He had been represented in his absence by his NIPSA representative, Mr Smyth. The outcome letter confirmed that Mr Smyth had given mitigating evidence on behalf of the claimant at that hearing. The letter states that this mitigating evidence was that the claimant was absolutely committed to addressing his alcohol dependency and it was observed that, although the nature of the (first) disciplinary charge had amounted to gross misconduct which would have warranted summary dismissal under the disciplinary rules, the (first) disciplinary panel had taken into consideration the claimant's claim of absolute commitment to addressing his alcohol dependency, together with a positive progress report received from Dr Black in July 2015. The claimant had accordingly been issued with a final written warning which was to remain on his record for a period of two years. He had also been downgraded. The appeal outcome letter then proceeds to make mention of the fact that the claimant was due to attend an Occupational Health appointment two days after the (second) disciplinary hearing, this being on 9 September 2015. The previous day, 8 September 2015, the claimant had contacted Occupational Health to reschedule the appointment, but he was advised that this had to be done through his manager. The claimant had contacted Ms Murchan to advise that he was unable to attend because he was sitting with his mother-in-law who was terminally ill. Ms Murchan, being unaware of the panel's decision the day before and of the essential requirement for the claimant to attend the Occupational Health appointment, made arrangements to have the appointment rescheduled. The claimant was then informed of the appointment on the morning of 9 September 2015, to have his bloods taken only. Dr Black had then reported to the respondent after the next appointment on 23 September 2015, that he had substantial concerns regarding the claimant's ongoing drinking and that he had shared his concerns with the claimant. Dr Black had once again stressed the importance of avoiding alcoholic drink altogether. The appeal panel noted that the claimant had made efforts to reschedule his Occupational Health appointment the very day after he had received such a serious disciplinary sanction, which included a very specific requirement on his part to attend all Occupational Health appointments as part of the ongoing monitoring arrangements. Mr Brownlee had made representations that these two allegations were in some way spurious and did not make logical sense. Notwithstanding this representation, the appeal panel was very clear that the two current allegations had to be viewed in the context of the fact that the claimant had previously received a Final Warning for being under the influence of alcohol at work on 17 June 2015. The appeal outcome letter then refers to the associated monitoring arrangements which were put into place by the disciplinary panel on 7 September 2015. In respect of each of the specified allegations, the appeal panel expressed itself to be satisfied with the following outcome: In respect of the first allegation, on the basis of the evidence and the facts presented, the claimant had failed to demonstrate the commitment he had given to addressing his alcohol dependency. The first allegation was therefore confirmed as substantiated. Regarding the second allegation, the outcome letter records that the postponement of the appointment was viewed as concerning by the appeal panel, as this was the day after the hearing when the disciplinary panel had issued the claimant with a final warning on the basis of his commitment to addressing his alcohol dependency and that Dr Black had made a clear statement in his report of 30 June 2015 that Dr Black had advised the claimant that he would remove the claimant from the Alcohol Monitoring Programme should the claimant fail to attend any of his appointments, without giving a reasonable explanation. The appeal panel did not accept that the claimant could have been in any doubt about the fact that he was absolutely required to attend each Occupational Health appointment allocated, as part of the Alcohol Monitoring Programme. The appeal panel had considered whether or not the reason indicated for the postponement was reasonable. Whilst there was no dispute that the claimant's mother-in-law was terminally ill at the time and that the claimant was supporting his wife through this, the evidence and facts surrounding the claimant's attempts to postpone this appointment did lead the appeal panel to decide that it was reasonable to conclude that the claimant was deliberately trying to avoid his monitoring assessment. Then there is a reference made in the next paragraph of the outcome letter to the appeal panel being informed that the claimant's mother-in-law had eventually passed away on 22 January 2016, yet the claimant had clearly led Ms Murchan to believe that the death of the claimant's mother-in-law was imminent when the claimant had contacted Ms Murchan on 8 September. The appeal panel stated that it was satisfied, on the basis of the evidence and facts presented, that it was reasonable to conclude that the claimant's efforts to cancel the Occupational Health appointment on 8 September, the day after the disciplinary hearing, was an attempt to misrepresent the claimant's true level of alcohol consumption. In summary, the appeal panel expressed itself to be deeply concerned at the claimant's overall lack of honesty and true commitment to the Alcohol Monitoring Programme. The second allegation was therefore found to be substantiated. The letter concluded with the appeal panel stating that the fundamental relationship of trust and confidence in the claimant, which was at the heart of the employment contract, had broken down. In view of this serious breakdown, the appeal panel had decided that the decision to dismiss the claimant from employment with the Trust should be upheld. This decision of the appeal panel was confirmed to be the final stage in the internal procedures.

 

THE LAW

4.             Article 126 of the Employment Rights (Northern Ireland) Order 1996 (ERO 1996) provides that an employee has the right not to be unfairly dismissed by his employer. Article 130(1) of ERO 1996 provides that in determining 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), those relating to the conduct of the employee.

Under Article 130(4) of ERO 1996 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.

The case of Iceland Frozen Foods v Jones [1983] ICR17 provides helpful guidance concerning the issue of whether an employer has acted reasonably in treating the reason, materially any employee's conduct, as a sufficient reason for dismissal. The guidance available from Iceland Frozen Foods is as follows:-

(1) The starting point should always be the words [of Article 130(4)] themselves;

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

(3)           In judging the reasonableness of the employer's conduct an [employment] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

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

(5)           The function of the [employment] 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.

An authoritative commentary in the Northern Ireland jurisdiction concerning this matter is contained in the decision of the Northern Ireland Court of Appeal in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 which case itself makes reference to the earlier case of Dobbin v Citybus Limited [2008] NICA 42.

In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63 the Court of Appeal provided clear guidance upon the essential issue that the tribunal must not substitute its own view for that of the employer. This has come to be what is known as the "substitution error". Accordingly, the appropriate test to be applied is whether the decision of the employer to dismiss the affected employee was or was not within the band (or range) of reasonable responses of a reasonable employer. This proposes an objective test of the issue from the perspective of the notional reasonable employer.

Another helpful (and long-respected) authority regarding cases of misconduct the case of British Home Stores v Burchell [1980] ICR303 in which case Arnold J stated as follows:

" 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".

The concept of a band of reasonable responses is pertinent not only to the decision to dismiss but also to the employer's chosen procedure. In cases of alleged misconduct, this encompasses investigative methods chosen by the employer and the manner in which these are pursued and hearings are conducted. Accordingly in order to fall within the band of what is reasonable the employer must carry out a reasonable investigation. This latter is emphasised in the case of Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 where Mummery LJ confirmed that the reasonableness of the employer's investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case. The case of Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 emphasises that the nature and extent of the investigation must be appropriate to the seriousness of the allegation and any far-reaching consequences of the potential outcome. For this reason, a comprehensive investigation is normally required when honesty or integrity of the employee is in issue and when a long-standing career or profession could be brought to an end by a dismissal. It is not for a tribunal to decide what investigations would have been appropriate in the light of evidence heard at hearing, but rather the tribunal is tasked with enquiring if any investigation fell within the band of reasonable responses of a reasonable employer, in all of the circumstances. In the case of A v B [2003] IRLR 405 Elias J provided guidance concerning a fair and balanced investigative function, in the following extract from Para. 60 of the EAT's judgment, "... 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" . This latter case was in respect of allegations of criminal misbehaviour, but nonetheless the principle is of broader application to any case with far-reaching and highly significant implications. In Bowater v Northwest London Hospitals NHS Trust Longmore LJ stated, "The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal 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. "A helpful case which explains the proper focus of the tribunal is Turner v East Midlands Trains [2012] EWCA Civ 1470 which comments on the inability of unfair dismissal claimants to re-canvass the merits of their case before the employment tribunal and emphasises that the tribunal, which was once regarded as being an industrial jury, is now a forum of review. This point was further emphasised in the case of Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, which indicated that it is not for the tribunal to conduct a primary fact-finding exercise. The function of the tribunal is to review the employer's decision (applying the band or range of reasonable responses test).

82. In regard to any (internal) appeal from an initial disciplinary determination, the case of Taylor v OCS Group Ltd [2006] IRLR 613 CA confirms that potential procedural defects which may attach to an initial disciplinary hearing or process are capable of being remedied on appeal. This is so provided that any subsequent stages in the process are sufficient to cure any earlier unfairness. For this reason the tribunal's task is to consider the entire process, from end to end as it were, and to determine if this process was fair or unfair in the light of the statutory provisions. On account of all the foregoing principles, the tribunal reminds itself that it has a somewhat restricted jurisdiction in unfair dismissal matters. Accordingly, the tribunal may not re-hear and re-determine the disciplinary decision originally made by the employer. The tribunal may not substitute its own decision for the decision reached by the employer. Having determined the reason for the dismissal, the tribunal has to determine if the employer harboured a genuine belief in the culpability of the employee, after having conducted a reasonable investigation into the alleged misconduct and whether the decision to dismiss was one which fell within the band of reasonable responses. The statutory provisions expressly provide that the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking which are entitled to be taken into account by the tribunal) the employer acted reasonably or unreasonably in treating the reason as constituting a sufficient reason for dismissing the employee. In general terms the matter shall be determined in accordance with equity and the substantial merits of the case.

T THE SUBMISSIONS

 

5. The tribunal received both written and oral submissions from the respective representatives of the parties. These submissions made reference to the general state of the contemporary law concerning unfair dismissal, referencing the relevant statutory provisions and also making reference to certain case law authorities and the relevant principles which, it was submitted, ought properly to be considered by the tribunal in reaching its determination the case. Specifically, on behalf of the claimant, the representative posed the fundamental question: "what did the claimant do wrong?" Accordingly, it was submitted that the claimant at no stage endeavoured to mislead the respondent. Ms Murchan had agreed to postpone the appointment on account of the valid reasons provided by the claimant. Whilst the respondent had endeavoured to argue that Ms Murchan was not aware of the Alcohol Monitoring Program, the evidence revealed that the Occupational Health reports were being copied Ms Murchan and therefore she must have been fully aware of the program, as far as this related to the claimant, as she was the line manager. In the light of this inevitable knowledge, she had expressly agreed to the appointment being postponed. The tribunal was requested to note that the respondent's representative had not sought to challenge the evidence of
Ms Murchan, who indeed had not provided a witness statement nor had she attended the tribunal hearing. In that regard, allegations of misconduct were suggested by the respondent to be encompassed within the terms of the respondent's Disciplinary Policy. However, the initial allegations, those relating to the claimant's conduct on 17 June, had already been dealt with and disposed of under the first disciplinary process; that indeed was concluded. The respondent had, in this first process, decided to impose a disciplinary sanction. This sanction included imposing a final written warning upon the claimant. No issue whatsoever was taken by the claimant that the respondent was, in these specific circumstances, entitled to sanction the claimant for his conduct. For the claimant, it was submitted that the disciplinary procedure adopted by the respondent thereafter was entirely unfair. The claimant's representative sought to direct the tribunal's attention to the Labour Relations Agency Code, at paragraph 63, which suggested (concerning the composition of disciplinary panels) that someone not previously involved in the process ought to have been engaged in these particular circumstances. However, the tribunal was requested to note that the same two individuals were involved, in a decision-making role, in both the disciplinary matters, being those arising from the 17 June and 8 September incidents. The judgement of these individuals was not independent; it was inevitably clouded, in the second matter, by close involvement in the first matter. The tribunal was, in this regard, entitled to take into account the size and administrative resources of the respondent organisation. The tribunal was requested to note, in the submission, that the respondent was a large organisation with substantial resources, including alternative persons who might have been engaged by the respondent to conduct the second disciplinary process. For this reason, the process was entirely procedurally unfair. Whilst not conceding that this was indeed a case of misconduct, the claimant's representative nonetheless sought to address the alternative argument, concerning the "Burchell test". The tribunal was invited in the submission to note, importantly, that at no stage was the claimant ever required to abstain completely from alcohol. If the respondent had sought to rely upon a specific commitment and to test the breach of that commitment as a disciplinary matter, there ought to have been a clear procedure advising the claimant as to what was expected of him. However, the respondent did not do this. The claimant's representative alluded to the cases of Singh v Lyons Maid Ltd [1975] IRLR 328, Game Retail Ltd v Laws UKEAT/0188/13, British Waterways v Smith UKEATS/004/15, Distillers Co (Bottling Services) Ltd v Gardiner [1982] IRLR 47, and Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382 EAT . It was asserted, in summary and in the light of these authorities, that any employee was entitled to have the benefit of clear policies and clear rules of conduct, properly communicated, in order that the employee would comprehend clearly any work instruction or obligation. It was asserted that the respondent had entirely failed, in that regard, in this case in respect of any matters concerned with the claimant's alcohol consumption.

 

6. Regarding the second allegation levelled in the (second) disciplinary process, there had been no misrepresentation whatsoever at any of the interviews conducted as part of the disciplinary process; indeed the claimant had spoken quite frankly about his drinking, far from endeavouring to misrepresent that issue. The representative invited the tribunal to note, importantly, that the claimant had been declared fit to work by Dr Black. Regarding the evidence placed before the second disciplinary hearing concerning the case made on behalf of the claimant to the first disciplinary hearing, the tribunal was asked to note that the disciplinary panel itself took no notes of that first hearing. There was indeed no contemporaneous record of the case that had been made by Mr Smyth. In effect, any evidence given concerning any case advanced by Mr Smyth was entirely hearsay. Anything in this respect was encompassed in the "second-hand" evidence to the tribunal of Ms Crilly and
Mrs Johnson, such as it was. The representative suggested that, very clearly, the respondent should have initiated a new investigation concerning any evidence provided by Mr Smyth. It was noted that the respondent's declared policy was not to take minutes of disciplinary hearings; that was a glaring failure of process. The representative alluded to the case of Sainsbury's Supermarkets Ltd v Hitt, which encompassed the settled law that the "range of reasonable responses" test applied not only to the decision to dismiss, but also to the investigation. Dr Black had not been interviewed and no evidence from him had been obtained. The respondent's failure to investigate was glaring, it was submitted. Much had been made in the hearing of this case concerning the word "abstemious", as it had been used by
Dr Black. Notwithstanding this, no attempt had been made to ascertain from
Dr Black precisely what the doctor had intended to mean by his use of this word. After having been advised by Ms Murchan that he was not obliged to attend the following day's appointment, the claimant had taken a drink in his own home, as he was not required to attend work on the following day. It was important for the tribunal to note, so it was submitted, that the claimant had had no issues at work whatsoever since the 17 June incident. Accordingly, the claimant had done nothing wrong. Upon the conducting of any fair and proper investigation, the respondent ought to have determined that there were no grounds whatsoever upon which to dismiss the claimant. The respondent indeed had endeavoured to introduce extraneous evidence regarding certain other matters which formed no part of any earlier disciplinary investigation, or of any earlier disciplinary finding and resultant sanction (this latter was an allusion to an attempt in the course of the tribunal hearing on behalf of the respondent to introduce certain evidence which the tribunal had ruled as being inadmissible). The respondent had relied entirely upon hearsay evidence in respect of any case that might have been made by the representative, Mr Smyth. It was important for the tribunal to note that at no stage had the claimant ever given an unqualified assurance or undertaking to the respondent that he would entirely abstain from drinking alcohol. Examining the entire process, dismissal of the claimant in these circumstances and upon these grounds was both procedurally and substantively entirely unfair.

 

7. For the respondent, it was submitted that the claimant's job put him in a position where he had to deal with and have responsibility for vulnerable adults. It was conceded that the claimant's disciplinary record was "clear" until the events of
17 June. Nonetheless the respondent was entitled to take the view that the claimant was not an exemplary employee and the tribunal must look at the full picture (once again this was an allusion to certain evidence which the tribunal had ruled as being inadmissible). It was denied that the salient part of the respondent's case, relating to the evidence and submissions that Mr Smyth advanced at the first disciplinary hearing, constituted hearsay. For the respondent it was submitted that a plea in mitigation had been made on behalf of the claimant by Mr Smyth at the first disciplinary hearing in the course of which it was acknowledged that the claimant was alcohol dependent. The claimant had informed Dr Black of the position and Dr Black's recording of matters contained in the report dated 30 June was of the claimant having been "abstemious" (the word used) from 17 June. The respondent took that expression to mean "abstinent" from that date. The claimant had voluntarily attended both the June and also the 30 July Occupational Health appointments. The first disciplinary hearing had proceeded and was concluded on
7 September. On 8 September, the claimant was seeking to postpone the first obligatory attendance in connection with the alcohol monitoring program.
Ms Murchan was unaware of the outcome of the disciplinary hearing at the time she gave permission to the claimant not to attend following day's appointment, but then she was properly informed of the situation and she then required the attendance of the claimant at Occupational Health on the following day. Dr Black had become concerned at the claimant's ongoing drinking. The doctor had been told by the claimant on 30 June that the claimant had taken no alcohol. Mr Smyth did make the case at the disciplinary hearing held on 7 September that the claimant was not consuming any alcohol. However, by October, the claimant was stating something quite different. The respondent's representative then sought to address the categorisation of the disciplinary charges. In terms of the precise definition of the first disciplinary charge levelled against the claimant (in the second process which led to his dismissal), the representative noted that it had been suggested that this disciplinary charge did not fall within any part of the disciplinary procedure as specified "gross misconduct". However, the representative requested the tribunal to note that the word "probity" appeared in the list of matters which were expressly categorised as constituting gross misconduct. That word "probity" was thus the proper categorisation of what could otherwise be categorised as being integrity or honesty issues.

 

8. In response to these submissions, the claimant's representative submitted that any extraneous information which had not formed any part of the decision to dismiss was entirely irrelevant and any such information should be discounted by the tribunal. The fact remained that any evidence regarding the content of Mr Smyth's "plea" on behalf of the claimant in the course of the first disciplinary hearing was entirely hearsay. Mr Smyth could have been called by the respondent to clarify matters, but the respondent had chosen not to do so. The claimant's representative's replying submissions also mentioned the following points: the same personnel had been employed to conduct both disciplinary processes; they were witnesses to evidence put forward in the course of the first disciplinary hearing; this was indeed a fundamental breach of the principles of natural justice; it was submitted that the entire process was entirely procedurally unfair. It was not in dispute that the claimant had stated to Dr Black at the initial appointment on 30 June that he had stopped drinking. However that was only 13 days after the first disciplinary incident had occurred. To imply that the claimant had endeavoured to mislead the respondent by issuing incorrect instructions to Mr Smyth, when the only evidence of what Mr Smyth had submitted to the disciplinary panel was entirely hearsay, presented, so it was submitted, an insurmountable evidential obstacle to the respondent. The claimant had indeed volunteered entirely openly that he had consumed alcohol whilst on vacation and also, for example, when attending a barbecue. That candour could not possibly demonstrate any attempt at misrepresentation of the position by the claimant. The word "abstemious" used by Dr Black could have been clarified with the doctor in the course of the investigation but the respondent had chosen not to do so, leaving considerable doubt as to what the doctor had actually intended to say. It was submitted that the dictionary definition of the word (which indeed had been discussed in the course of the tribunal hearing) was capable of a number of different interpretations. Employing one of these definitions, the word "abstemious" does not in fact mean "abstinent", but rather is suggestive of a reduction (in alcohol consumption). No clarity had indeed been sought from Dr Black. The claimant, for his part, maintained that his approach was to drink in moderation but that he was not abstinent and, after 30 June, he personally had never claimed to be entirely abstinent. This matter was borne out by the claimant's candour in the course of his discussions with Dr Black. Accordingly, there was no misrepresentation whatsoever on the claimant's part of the true position regarding his drinking. For this reason, it was submitted that the tribunal properly ought to conclude that the respondent had failed to carry out a reasonable investigation and was thus not entitled to form the conclusion, which it did, that resulted in the claimant's dismissal. Finally, the claimant's representative submitted that the endeavour to put forward a categorisation of the disciplinary charge as one of "probity", indeed had only emerged at the tribunal hearing and had never been alluded to in any previous stage in the process; that was entirely unconvincing. The submission on the part of the respondent was now endeavouring to move into the arena of suggesting that the claimant had been dismissed for some other substantial reason, relating to an alleged breakdown in trust and confidence, when that had never been part of the disciplinary case put to the claimant. This illustrated the confusion on the part of the respondent. Some other substantial reason was not just a convenient label to put on things where an employer had difficulty in finding a label. In that regard the representative referred the tribunal to the case of Leach v Ofcom [2012] EWCA Civ 959 where Mummery LJ had observed that, " The mutual duty of trust and confidence.... . is not a convenient label to stick on any situation in which the employer feels let down by the employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate". Generally, it was submitted, the respondent had been confused in its thought processes throughout the entire disciplinary process, leading to significant unfairness.

 

 

 

THE TRIBUNAL'S DETERMINATION

 

9. The tribunal has carefully examined the helpful and comprehensive submissions, both written and oral, in this difficult case, as advanced by the representatives. The tribunal is tasked with making findings of material fact and with the application of the relevant law to the pertinent facts. The law is, in the main, fairly settled concerning matters of alleged unfair dismissal and there are some leading and helpful authorities in that respect, which have been mentioned above, many of which were also cited in argument by the respective representatives. There were, in this case, two separate disciplinary processes conducted by the respondent and then an appeal was pursued by the claimant concerning the second of these processes. In respect of the first of these disciplinary processes, the claimant without any equivocation, fully conceded the misconduct alleged against him. The claimant did not personally attend the first disciplinary hearing and indeed he was not required to do so. He was represented by his trade union representative, Mr Smyth of NIPSA. On the claimant's behalf, Mr Smyth accepted the disciplinary charge levelled against the claimant.

 

10. A number of issues however arise concerning this first disciplinary process. The first of these issues relates to the precise nature of the case that was advanced before the first disciplinary panel by Mr Smyth. There has been some possible implication in this case that the claimant might have intentionally mis-instructed
Mr Smyth in order to convey an inaccurate impression to the disciplinary hearing that the claimant was (at September 2015) entirely abstinent from alcohol. The tribunal has carefully considered any evidence in this regard, applying appropriate weight. It is noted (and indeed this is, as far as the tribunal is concerned, somewhat surprising and regrettable) that the respondent has a practice of not maintaining a detailed contemporaneously-taken record of any disciplinary hearing proceedings. Instead of this, the respondent's practice apparently seeks to encapsulate the essential elements of what was stated and what transpired in the hearing proceedings and any outcome, in a letter which is issued by the respondent following such a hearing. This was the procedure employed by the respondent in this case. Both that fact and also the failure to call Mr Smyth as a witness, where he might otherwise have clarified matters, places the tribunal in a somewhat difficult position where the tribunal cannot determine, with any certainty, precisely the nature and content of any case made by Mr Smyth on behalf of the claimant. Indeed, Mrs Johnston in her evidence to the tribunal, whilst conceding that it would have been good practice to have taken a contemporaneous note of the hearing, could not recall the wording actually used by Mr Smyth, but asserted nonetheless that she was clear that Mr Smyth had referred to the claimant being abstinent. There is however a fine distinction to be drawn between a case that seeks to assert total abstinence and, alternatively, portrays a reduction in alcohol consumption to a moderate or low level. This is especially so in regard to the issue of whether or not the claimant had been, entirely "abstinent" from alcohol since the events of 17 June or whether he had been "abstemious" (in that latter regard to take one of the possible definitions of that word - meaning that the claimant had reduced his alcohol consumption, but that he was not entirely abstinent). Examining all of this, the tribunal does not determine that the claimant intentionally or negligently
mis-instructed Mr Smyth, nor does the tribunal accept that there is any conclusive and compelling evidence as to what Mr Smyth might have stated to the disciplinary panel. Anything that is available to the tribunal is hearsay. Whilst hearsay evidence is admissible, nonetheless, the tribunal is entitled to deal with this in the same manner as any hearsay evidence, attaching lesser weight than it would to any direct evidence. On that basis, the tribunal does not conclude that there is sufficient weight of evidence to support the contention that the claimant's case before the disciplinary hearing on 7 September was that the claimant, without any doubt, had been and that he was, entirely abstinent from alcohol at that time in September 2015. The tribunal is supported in this conclusion by the claimant's very evident candour in his conversations with Dr Black after the first meeting and also in his provision of information, again in a very open manner, to the (second) disciplinary investigation. It would have been illogical to have adopted one approach (of concealment) and then a totally different one (of candour) in different parts of the overall process.

 

11. The tribunal then examined the communications dispatched by Dr Black to the respondent. The first of these, dated 30 June 2015, accurately records what the claimant had informed Dr Black, to the effect that the claimant had been abstinent from alcohol from the time of the first incident up to the date of that meeting with
Dr Black. There is no contention about that. The next appointment with Dr Black was on 30 July. In his report after this, dated 3 August 2015 sent to Ms Murchan, Dr Black indicated that he was pleased with the progress that the claimant had made and stated that a review appointment would be made for early
September 2015 after the claimant's return from annual leave (the next appointment was intended to have been one month later but the claimant was on leave). The claimant missed the next appointment (9 September) with Dr Black (for reasons discussed) and after the next appointment which the claimant attended with
Dr Black, that being on 23 September, Dr Black dispatched a report dated
29 September 2015 to Ms Walsh. In this, Dr Black confirmed that he had discussed with the claimant the results of the most recent blood test and had stressed to him the doctor's concerns regarding the claimant's health and alcohol intake. Dr Black however viewed the claimant as being fit to work. He nonetheless had substantial concerns about ongoing drinking and had once again stressed the importance of avoiding alcoholic drink altogether. In this regard, the claimant did quite candidly discuss his drinking with Dr Black, who makes the record accordingly referred to. The tribunal notes that the claimant's line manager was Ms Murchan. These reports from Dr Black were copied to her, being the 7 July and the 3 August reports and these expressly allude to his participation in the monitoring programme. The tribunal finds it difficult to comprehend how Ms Murchan could have been unaware of the relevant circumstances surrounding the claimant's attendance at these appointments and his participation in the monitoring program at the time when the claimant endeavoured to cancel the 9 September appointment. However, having very evidently accepted as entirely genuine the circumstances surrounding the serious, indeed terminal, illness of the claimant's mother-in-law and his familial responsibilities, Ms Murchan agreed to the claimant's non-attendance at the following day's appointment, in the light of her evident awareness of the claimant's participation in the programme. The claimant was correspondingly quite entitled to accept this express confirmation at face value of there being no requirement to attend, as this came from his line manager. He was at home. He was not required to attend work the following day. He was in the company of his brother-in-law and they were attending an extremely sick relative. The claimant had no comprehension at this specific time that he would indeed be obliged to attend the appointment the following day and that the direction from his line manager would subsequently be changed.

 

12. An important issue attaches to the dates. The disciplinary hearing in respect of the first charge had proceeded on the previous day, 7 September. The claimant's representative, Mr Smyth, had telephoned him to advise of the outcome, providing certain basic details. There is no evidence whatsoever to support the proposition that Mr Smyth advised the claimant that one of the conditions attaching to the disciplinary outcome was that the claimant was required, as a matter of compulsion, to attend the blood alcohol monitoring programme. Accordingly, on 8 September, at the time he took the decision to consume alcohol at home, the claimant was, upon the available evidence, entirely ignorant of that compulsory condition imposed by the disciplinary panel. Indeed the respondent chose to inform him, formally, of that outcome and of this specific mandatory condition, by letter dated 9 September, dispatched very probably on that date but which did not reach the claimant until either the 10 or 11 September. Accordingly, leaving aside the wisdom of doing so and concentrating only upon any work direction, there was no reason why the claimant ought not to have consumed alcohol on 8 September and he did so. When the claimant was then contacted by telephone on the following day by Ms Murchan, to countermand her original approval and to insist that the claimant attended the appointment arranged for 9 September, the claimant was placed in the position of having to attend. Indeed he duly did so, as instructed, notwithstanding his domestic situation concerning his mother-in law's terminal illness.

13. All of this course of events, in terms of investigation, appears to have been approached by the respondent with a lack of precise and clear vision. Missing from all of this appears to be an endeavour to conduct a true, proper and thorough analysis of all relevant facts. Examining the investigation carried out which led to these specific disciplinary charges being formulated and then levelled against the claimant (in the second process), the tribunal notes not only the expressly-stated provisions of the respondent's Disciplinary Policy, which are mentioned above, but specifically the requirement that such an investigation must be conducted in accordance with the objective standard represented by the "band of reasonable responses" test. This latter provides a range of possibilities as being open to employers. However, any point within this range of possibilities, chosen by the employer, must be a reasonable one.

14. Is an inescapable fact that this is a case of a long-serving employee, having had some 24 years' of service, who stood to lose a career and who held an otherwise unblemished disciplinary record, save for the disciplinary matter which had already been determined a very short time before. The claimant faced accusations which have, at this tribunal and rather belatedly, been categorised as ones of "probity" (in reference to the list of Gross Misconduct categorisations contained within the respondent's Disciplinary Policy). These were, in effect, allegations of dishonesty levelled against the employee. In such circumstances, the general approach of the authorities suggests that a higher standard of investigation would be required than might be appropriate in a case with much less far-reaching consequences than the dismissal of an employee in the claimant's circumstances. As mentioned above, this latter was the subject of commentary in the case of Salford Royal NHS Foundation Trust v Roldan, which case emphasises that the nature and extent of the investigation must be appropriate to the seriousness of the allegation and any far-reaching consequences of the potential outcome. This is precisely the situation which applied in this case. An appropriately comprehensive investigation would normally be required when honesty or integrity of the employee is in issue and when a long-standing career or profession could be brought to an end by a dismissal. It is of course not for the tribunal to decide what investigations would have been appropriate in light of evidence heard at hearing, but rather the tribunal is tasked with enquiring if any investigation fell within the band of reasonable responses of a reasonable employer.

 

15. In terms of procedural fairness, the same personnel were involved in both of the disciplinary investigations. The same panel was responsible for adjudication upon the first disciplinary charge as well as the subsequent disciplinary charge. The tribunal notes that the respondent is a large Trust. It has, it must be presumed, significant resources in terms of personnel. This issue was raised by the claimant's representative in cross-examination of the respondent's witnesses, yet the tribunal received no proper or credible explanation from the respondent as to why, given the significant administrative resources available, the arrangements were made in the manner applied by the respondent. There appears to have been no proper thought given by the respondent to having the second process subject to engagement by persons who were entirely unconnected to the first process, any such being persons who could bring a fresh scrutiny to matters, uninfluenced by what had gone before. Indeed the tribunal notes that this issue was expressly drawn to the respondent's attention by the claimant's representative in the disciplinary process. The panel dealing with the second disciplinary hearing however chose to disregard or dismiss the submissions advanced concerning the significant risk of procedural unfairness. The assertion by Mr Brownlee was rejected. However, from the evidence, that rejection did not even merit recording any properly comprehensive analysis or indeed any further commentary as to why the panel had rejected Mr Brownlee's submission, merely that the comment would be noted. The tribunal, in this regard, has noted the Labour Relations Agency's Code of Practice. Adherence to the Code's provisions, in this respect, is not binding, but any departure requires to be closely scrutinised by the tribunal. The Code, at paragraph 63, provides, with the tribunal's emphasis:

 

" 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". "

 

16. The second disciplinary hearing thus proceeded, in breach of the foregoing provision of the Code, with the same panel that had already formed quite a specific (and a very unfavourable) view indeed of the claimant and of the circumstances surrounding the events of 17 June, for which the claimant had already accepted full culpability. At the second disciplinary hearing the claimant's representative advanced the argument that the disciplinary charges, as framed, were irrational and that they did not make sense, but that assertion was rejected. The issues addressed by the panel and the panel's reasoning was committed to the outcome letter dated 7 December 2015, the details of which are as mentioned above.

17. Upon being notified of the outcome, the claimant requested and was afforded an appeal from the dismissal decision. The appeal hearing took place on 18 April 2016, with a panel comprising Mrs Walker and Mr David Douglas, Assistant Director of Family Support and Safeguarding. The panel indicated that the appeal hearing would constitute a "full rehearing" of the case. Prior to the appeal hearing commencing, Mr Brownlee on behalf of the claimant objected to the appeal panel being provided with a witness statement provided by the claimant to the first disciplinary hearing and he contended that this bore no relevance to the appeal, which was against the sanction of the second disciplinary panel, the sanction of dismissal. Mr Brownlee indeed provided a very detailed written submission, consisting of some 21 pages. In this submission, amongst other issues, Mr Brownlee submitted that it could never be right that the same people would sit on a second disciplinary panel, as had occurred in this case. He argued that this would cause potential prejudice to affect the panel's decision-making in the second disciplinary proceeding. Mr Brownlee indeed mentioned that a grievance had been lodged concerning the makeup of the panel but he stated that the respondent had refused to hear this grievance. Mr Brownlee also indicated that he had requested the removal of certain documents from the appeal panel's bundles, as these documents did not pertain to the case; however, his request was apparently rejected. Mr Brownlee argued that the disciplinary hearing appealed against was procedurally wrong and that any dismissal would be automatically unlawful and, further, that the claimant had had his human rights violated. His submissions included the contention that the investigation was based on a false premise; that the claimant was medically fit to work; that he was performing adequately at work; that there existed a reasonable excuse to postpone the
9 September 2015 appointment with Occupational Health; that the claimant had made every possible effort to demonstrate his commitment to addressing his dependency on alcohol; and indeed that nowhere in the documentation was there any expectation that the claimant would totally abstain from alcohol. Finally, he argued that the claimant had been fully open and honest with his employer. The tribunal carefully examined the conduct of the appeal hearing. The case against the claimant was presented by the same investigating personnel who had presented both the cases below, at the first disciplinary hearing and at the second disciplinary hearing. There was no endeavour on the part of the respondent to institute a fresh investigation for the purposes of the stated rehearing of the case. Accordingly, as far as the tribunal understands things, the investigating personnel advanced the same evidence and arguments as had been advanced to the second disciplinary hearing. Mr Brownlee's submissions included the points mentioned above, including the contention that irrelevant evidence from the (first) disciplinary process ought to have been excluded.

18. The outcome of the appeal was encapsulated in a letter to the claimant dated
6 May 2016 from Mrs Walker. The detail of that letter is as mentioned above. The appeal panel accepted that the claimant's NIPSA representative, Mr Smyth, had given mitigating evidence on behalf of the claimant at the (first) hearing to the effect that the claimant was absolutely committed to addressing his alcohol dependency and that, although the nature of the (first) disciplinary charge had amounted to gross misconduct, warranting summary dismissal, the disciplinary panel dealing with the first matter had taken into consideration the claimant's claim of absolute commitment to addressing his alcohol dependency, together with a positive progress report received from Dr Black. The appeal outcome letter then mentioned the finding that the claimant was due to attend an Occupational Health appointment two days after the foregoing disciplinary hearing, on 9 September 2015, but that on 8 September 2015, the claimant had contacted Occupational Health to reschedule the appointment. Ms Murchan, whom the appeal panel found to have been unaware of the panel's decision the day before and unaware of the essential requirement for the claimant to attend the Occupational Health appointment, had the appointment rescheduled. The claimant was then informed of the appointment on the morning of 9 September 2015, to have his bloods taken only. The appeal panel noted that Dr Black subsequently reported substantial concerns regarding ongoing drinking and stressed the importance of avoiding alcoholic drink. Specifically, the appeal panel noted that the claimant had made efforts to reschedule his Occupational Health appointment, as they recorded it, the very day after he had received a serious disciplinary sanction, including a specific requirement to attend all Occupational Health appointments as part of the ongoing monitoring arrangements. The appeal panel did reference Mr Brownlee having made representations that the two allegations were in some way spurious and did not make logical sense, but the panel was very clear that the two allegations had to be viewed in the context of the claimant previously receiving a Final Written warning. The appeal panel then expressed itself to be satisfied that the claimant had failed to demonstrate the commitment he had given to addressing his alcohol dependency; the allegation was substantiated. Regarding the second allegation, the appeal panel did not accept that the claimant could have been in any doubt about the fact that he was absolutely required to attend each Occupational Health appointment allocated, as part of the Alcohol Monitoring Programme. The appeal panel then proceeded to address whether it considered the reason indicated for the postponement to be reasonable. Examining this, the tribunal indeed found the next part of the outcome letter to be somewhat concerning. It records that, whilst there was no dispute that the claimant's mother-in-law was terminally ill at the time and that the claimant was supporting his wife through this, the evidence and facts surrounding the claimant's attempts to postpone this appointment did lead the appeal panel to decide that it reasonable to conclude that the claimant was deliberately trying to avoid his monitoring assessment. There then follows what can only be assumed to be an insinuation of dishonesty, when the appeal panel make reference to being informed that the claimant's mother-in-law had eventually passed away on 22 January 2016, yet the claimant had clearly led Ms Murchan to believe that the death of the claimant's mother-in-law was imminent, when the claimant had contacted Ms Murchan on 8 September. Such an insinuation, the tribunal notes, indeed runs counter to the entirety of the respondent's evidence given in the course of the tribunal hearing, which is to the effect that the respondent did not, as it were, "look behind" the explanation given by the claimant and the veracity of the information that the claimant's mother-in-law was indeed very seriously ill at the material time. Indeed Ms Murchan had fully accepted that this was a proper and valid reason to postpone (until she was advised of the compulsory nature of the appointment).

 

19. The content of the appeal outcome letter, taken together with other factors emerging from the entire process, indicates to the tribunal a clear inconsistency of approach and, it must be said, a degree of confused and confusing thinking on the part of the appeal panel, echoing that which is evident from the preceding stage of the disciplinary process. The outcome letter concludes by stating that the appeal panel was satisfied that it was reasonable to conclude that the claimant's efforts to cancel the Occupational Health appointment on 8 September was an attempt to misrepresent the claimant's true level of alcohol consumption. There is a reference made to deep concern at the claimant's "overall lack of honesty" and "true commitment" to the Alcohol Monitoring Programme. The outcome letter then indicates that the second allegation was found to be substantiated. The letter ends with a reference to the issue of trust and confidence in the claimant having broken down and that the appeal panel had decided that the decision to dismiss the claimant from employment with the Trust should be upheld.

 

20. In regard to any appeal from an initial disciplinary determination, the case of Taylor v OCS Group Ltd confirms that potential procedural defects which might attach to an initial disciplinary hearing are capable of being remedied, on appeal. This is so provided that any subsequent stages in the process are sufficient to cure any earlier unfairness. Some aspects of the appeal process considerably troubled the tribunal. Whilst at this stage there were different persons engaged in the adjudication,
Mrs Walker and Mr Douglas, the presentation of the case to the appeal panel was conducted by the same two persons who had done so in respect of the first disciplinary hearing and the second disciplinary hearing, Ms Crilly and Mrs Welch. The case of Salford Royal NHS Foundation Trust v Roldan emphasises that the nature and extent of the investigation must be appropriate to the seriousness of the allegation and any far-reaching consequences of the potential outcome. Accordingly, a comprehensive investigation is normally required when honesty or integrity of an employee is in issue and when a long-standing career or profession could be brought to an end by a dismissal, such as this case. The tribunal has above referred to the case of A v B [2003] IRLR 405 in which case Elias J provided helpful guidance concerning a fair and balanced investigative function, in the cited extract from Para. 60 of the EAT's judgment. That includes the following words, "... 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". Whilst it is not for the tribunal to decide what investigations would have been appropriate in light of evidence heard at hearing, nonetheless the tribunal is tasked with enquiring if the investigation conducted by the respondent fell within the band of reasonable responses of a reasonable employer, in all of the circumstances. In examining whether that was the case, the tribunal does note that the respondent for the purposes of the appeal made no real endeavour to conduct a fresh investigation. The tribunal regards it as having been of considerable importance that a proper investigation was conducted, within the band of reasonable responses of a reasonable employer, when one disciplinary process the outcome of which is a finding against the employee and the imposition of a disciplinary sanction just short of dismissal, is then followed almost immediately, as it was in this case, by a second disciplinary process which, in itself, fundamentally relies upon information gathered in of the first process. Then, if there is to be an appeal by way of a complete rehearing, it is difficult to accept that such a complete rehearing will not be adversely affected by the failure to conduct a full and a fresh investigation into all of the relevant circumstances, such as was the failure in this case. This issue was indeed expressly raised by Mr Brownlee and the panel could have been in no doubt about the issue. The appeal panel, if it had been dispassionately and properly conducting a full rehearing, would thus have been fully alert to the issue. The panel would have taken proper account of Mr Brownlee's arguments and would have come to a reasoned conclusion and determination of the point. As far as that can be gauged, any argument by Mr Brownlee in this respect was entirely dismissed by the appeal panel and there is no evidence that it was, in any manner, properly and conscientiously considered. Furthermore, although the authorities such the case of Salford Royal NHS Foundation Trust v Roldan indicate that in such a far-reaching matter as the potential dismissal from employment of a long-serving employee of 24 years' service, there must be a sufficient quality of investigation, there is no evidence that such an investigation was conducted. There were certain fundamental issues left entirely unexplored. This causes the tribunal to form the view that the investigation was not reasonable in all of the circumstances. For example, certain fundamental issues as to what precisely Dr Black intended to say in respect of the issue of total abstinence, as opposed to reduction in alcohol consumption, on the claimant's part and the seeking of clarification from Dr Black or the, it must be said illogical but unquestioned, assumption that the claimant had been without any doubt informed of the entirety of the outcome of the first disciplinary process, when the respondent's letter informing the claimant of the outcome had not even been dispatched by the 8 September, exemplifies both a lack fair and proper investigation and also a lack of proper, robust and comprehensive enquiry on the part of the hearing panel and indeed the subsequent appeal panel. The point here, of course, to which the respective panels seem to have been blind, is that the claimant's attendance at the Alcohol Monitoring Program was entirely voluntary on his part. The respondent had at no time ever issued the claimant with a clear work direction that he had to refrain absolutely from alcohol consumption. The situation indeed remained so up to the point when such attendance at these alcohol monitoring appointments was then expressly designated as being a mandatory work direction; that was on foot of the determination of the disciplinary panel as an outcome of the hearing on
7 September.

 

21. However, the claimant was not in attendance at the foregoing hearing. There is no evidence that Mr Smyth expressly mentioned that specific mandatory requirement to the claimant, after the outcome was known, in the telephone conversation of that day. The written outcome confirmation (including this stipulation) was then encompassed in the letter dispatched on 9 September, which letter the claimant inevitably did not receive until at least the following day, 10 September, or possibly 11 September. Upon receipt, he would have then seen the mandatory stipulation. Notwithstanding all of this, the disciplinary hearing and the subsequent appeal hearing proceeded with the panel, in each case, assuming without question the claimant's full awareness of compulsion, when none such had ever been effectively communicated to the claimant at the point when he was alleged to have been engaged in dishonestly attempting to evade the monitoring appointment arranged for 9 September. The respective panels entirely disregarded that the claimant's attendance had been voluntary, on foot of an inadequate investigation and a defective presentation of the case, with disciplinary charges which did not readily follow from anything contained in the respondent's Disciplinary Procedure and from any definition of gross misconduct in the respondent's categorisation therein.

 

22. Regrettably, this confused thinking in the framing of the disciplinary charges, which Mr Brownlee endeavoured to bring to the appeal panel's attention, was entirely dismissed. The appeal panel did not properly and conscientiously address its mind to the issue raised. Furthermore, in both the disciplinary hearing and subsequent appeal, the investigation had not encompassed any proper enquiry into the case that had actually been made by Mr Smyth to the first disciplinary panel and indeed the fundamental issue of whether or not the claimant had intended to give and had given, via Mr Smith, an entirely unqualified undertaking and assurance that he would fully abstain from alcohol. The somewhat surprising absence of a proper record or minutes taken of the first disciplinary hearing, serves to compound the difficulty. In general terms, it is evident to the tribunal that the appeal panel did not conscientiously seek to assess all of the relevant evidence. This was, in such a serious matter as the dismissal of a long-serving employee with an otherwise untarnished record (save for one very recent matter) required to be conducted as much to find factors which might go to the mitigation of the claimant's position as much as to find factors supporting his culpability which might have properly supported a decision to dismiss. In that latter regard the case of A v B is relevant and the passage from Elias J is as cited above. There is nowhere mentioned, in any of this, the claimant's following of the Alcohol Monitoring Program and indeed his attendance at every appointment. There is no reference made to the claimant's full and complete candour, this indeed being the very antithesis of an approach which might have been in any manner dishonest. The appeal panel disregarded the evidence that Ms Murchan, who prior to being informed that the claimant's attendance at the 9 September appointment was indeed compulsory, appeared fully to accept the veracity of the claimant's reason for wishing not to attend; indeed
Ms Murchan seems to have regarded that reason as being entirely credible. Notwithstanding all of this, the appeal panel committed itself in the outcome letter to even going so far as to insinuate that the delay between these events of 8 and
9 September 2015 and the ultimate death of the claimant's mother-in-law some time later, in some way was suggestive of dishonesty on the claimant's part. The fact of the claimant, in all of the circumstances, having been nothing other than fully candid, open about his alcohol consumption and entirely honest, both with Dr Black and also with the respondent's investigation, was entirely disregarded. To find dishonesty (or perhaps lack of probity, to adopt the definition advanced at the tribunal hearing) which has been the finding of the (second) disciplinary panel, with the appeal panel fully supporting that conclusion, is indeed a perverse conclusion.

23. In regard to the issue of mitigation, there is no evidence apparent from the outcome letter to the (second) disciplinary hearing and also the appeal hearing that the respective panels gave any, or any proper, consideration to the matter of mitigation or to the possibility of considering action short of dismissal. The tribunal notes that Paragraph 3 (g) of the respondent's Disciplinary Procedure, provides (with the tribunal's emphasis), " In deciding upon appropriate disciplinary action, consideration shall be given to the nature of the offence, any mitigating circumstances and previous good conduct". Indeed this is echoed at Paragraph 6.4, " Before deciding on the appropriate disciplinary action, the Disciplinary Panel should consider any mitigating circumstances put forward at the hearing and take account of the employee's record". Dismissal for gross misconduct is not an inevitable sanction. Paragraph 6.5 (c) provides, " Dismissal will apply in situations where previous warnings issued have not produced the required improvement in standards or in some cases of Gross Misconduct". The procedure envisages dismissal being applicable where a previous warning has failed to produce the required improvement or in some, but expressly not all, cases of gross misconduct. In this case the "previous warning" had not even been fully and effectively communicated in writing to the claimant at the point where he was again facing a disciplinary process.

 

24. There was insufficient evidence and information upon which both the disciplinary panel and the subsequent appeal panel could reasonably have formed a concluded a belief in the culpability of the claimant in respect of the two disciplinary charges, as specifically framed. For these reasons, this case epitomises not just an unfair process, firstly in terms of the extent and quality of the disciplinary investigation, secondly in regard to the fair and proper conduct of the (second) disciplinary hearing and, thirdly, the subsequent appeal, but the case also epitomises an element of confused and not entirely logical thinking, with an evident lack of clarity on the part of the respondent's personnel who were involved in the investigation and presentation of the disciplinary allegations and the adjudication and then the subsequent appeal. This is so in regard to the specific identification of the charges of gross misconduct sought to be levelled against the claimant (where indeed the respondent's representative, rather belatedly, at the tribunal hearing endeavoured to assist the respondent by identification of the word "probity" in the respondent's Disciplinary Code) and by the shifting of focus towards a broader "trust and confidence" issue, that appears to have arisen out of the process.

 

25. The tribunal is tasked with an examination of and an assessment of the entire process, viewed from start to finish, in accordance with the statutory provisions and by the application of the settled law and authorities to the facts. The entire process, in the tribunal's view and for the foregoing reasons, does not fall within the band of reasonable responses of a reasonable employer. As this is the conclusion, the tribunal's unanimous finding is that the claimant was unfairly dismissed by the respondent. The case shall now be reconvened for a hearing on remedy.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 17 & 18 May and 15 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: