Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:            1255/16

1256/16

 

 

 

CLAIMANTS:                       1. Craig Courtney

                                                2. Veronica Crawford/Courtney

 

 

RESPONDENT:                  Ender Enterprises Ltd t/a Milne Holiday Park

 

 

 

DECISION

The claimant’s claims for unfair dismissal and breach of contract are upheld.  The Tribunal orders there to be a joint remedies and costs hearing.

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Sheils                     

Members:                             Mr A Carlin

                                                Mr I O’Hea

 

Appearances:

 

The claimants appeared and were represented by Mr Ryan Cushley, Barrister-at-Law instructed by Heather Stratton, Solicitor of Thompsons Solicitors.

 

The respondent appeared and was represented by Mr Patrick Moore, of MCL Associates.

 

 

 

THE CLAIMS AND THE RESPONSES

 

1.            Mr and Mrs Courtney claimed that they had each been unfairly dismissed by the respondent arising out of an incident which occurred on 21 January 2016.  They also claimed failure to pay notice pay and unlawful deduction of wages in respect of arrears of pay and unpaid commission.

 

It was claimed by the claimants that the removal of the laptop amounted to a breach of contract.  Although all parties agreed that the laptop belonged to the company the claimants’ contract stated that it should be returned to the company ‘on request’.  It was suggested that as there had been no request for its return, the removal of the laptop was in breach of that contract. 

 

RESPONSE

 

2.         The respondent denied all the claims.

 

THE EVIDENCE

 

3.         An agreed bundle of documents (except an agreed Schedule of Loss) of some 261 pages was provided to the Tribunal which included the following witness statements: the claimants, Craig Courtney and Veronica Courtney and on behalf of the respondent, Edward Fearon, Tanya Chambers, Wendy Boyd, Patrick Moore and Alan Milne. 

 

4.         At the outset of the hearing the claimant’s barrister, Mr Ryan Cushley applied to have the witness statements of Alan Milne, Wendy Boyd and Tanya Chambers removed from consideration as he submitted that their evidence did not touch on the dismissal of the claimants and was therefore irrelevant.  The panel reviewed all witness statements and agreed to review the matter as the case progressed. 

 

5.         In the event, the Tribunal considered the witness statements of Alan Milne, Wendy Boyd, Edward Fearon and Patrick Moore and heard their evidence.  Tanya Chambers did not witness the incident which was the reason for the dismissal nor had she any part in the subsequent disciplinary process.

 

6.         The Tribunal also viewed CCTV footage of the incident which occurred on 21 January 2016.  This was a visual tape only, without soundtrack.

 

A Note on the Evidence

 

7.         In Mr Milne’s witness statement he made a number of very serious and even personal allegations about Mrs Courtney during her employment.  These included suggesting that Mrs Courtney had followed a particular practice at work that was “tantamount to theft”.  However none of these allegations was related to the dismissal and were not put to Mrs Courtney at this hearing.  This gave
Mrs Courtney no opportunity to deny the allegations.

 

THE LAW

 

Automatically Unfair Dismissal/ Statutory Dismissal Procedure

 

8.         The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case.  In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

 

Step 1 - written statement of grounds for action and invitation to meeting - the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee.

 

Step 2 - meeting - the meeting must take place before action is taken.  The meeting must not take place unless -

 

(a)          the employer has informed the employee what the basis was for including in the statement the grounds given in it, and

 

(b)          the employee has had a reasonable opportunity to consider his response to that information.

 

The timing and location of meetings must be reasonable.

 

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

 

Step 3 - appeal - if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.  After the appeal meeting, the employer must inform the employee of his final decision.  The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

 

9.         By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.

 

10.      A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant - see Venniri v Autodex Ltd (EAT 0436/07).

 

Ordinary Unfair Dismissal

 

11.       Article 130(4) of the Order states as follows:-

 

“where the employer has fulfilled the requirements of para (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”.

 

12.      Case Law in Northern Ireland still follows the principles summarised in the judgement of the Northern Ireland Court of Appeal in the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust.  These principles were extrapolated from Iceland Frozen Foods Ltd v Jones 1983 ICR 17 and British Home Stores v Burchell 1980 ICR 303.  These are as follows:-

 

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

 

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

 

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

 

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

 

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

 

13.      The Court in the Rogan case also quoted with approval the following passage from the case of British Home Stores v Burchell 1980 ICR 303:

  

                        “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element (my emphasis).  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 (my emphasis).  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

 

14.      In the Rogan case, the Court described the task of the Tribunal as follows:-

 

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

 

15.      The Court of Appeal also noted that:-

 

            “The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal”. 

 

16.      The Tribunal heard the evidence in this case, reached findings and conclusions, on the balance of probabilities and applied the above law to them.

 

AT HEARING

 

Factual background

 

17.      The claimants Craig and Veronica Courtney were employed by the respondent, Ender Enterprises Ltd t/a Milne Holiday Park on 1 August 2014.  They were originally based at Silvercove Caravan Park in Kilkeel but moved to Mourneview Caravan Park in Newcastle in October 2014.  They were employed as Site Managers and the remuneration package was as follows: - a joint salary of £35,000.00, which was to be split on the basis of £1,822.92 per month gross to Mrs Courtney and £1,093.75 per month gross to Mr Courtney, fifteen thousand of the total salary was to be an advance on commission and it was agreed that once the claimants reached the required amount of sales, of approximately 37 caravans, they would earn a commission of £400.00 on each caravan sold. 

 

18.      The claimants would also earn commission on sales of gas cylinders, sales of caravan insurance and would be responsible for cleaning caravans, earning a fee of £25.00 per caravan cleaned.  The remuneration package included the fact that the claimants would be provided with a house and home on the caravan park and that all household utility bills would be paid.  They were provided with a company van and fuel expenses and they were both provided with mobile phones and internet access. 

 

19.      The employment relationship between the parties was not good from the outset.  There were disagreements about job titles, line management authority and disagreements particularly between Mrs Courtney and Mr Milne, which were mutually unpleasant.  There were also disagreements between Mrs Courtney and other staff members.  On one occasion, Mr Milne invited Mrs Courtney and another staff member to a lunch in an attempt to improve their working relationship. 

 

20.      The working relationships deteriorated to such an extent that in May 2015 Mrs Courtney was invited to a disciplinary meeting.  Mr Milne stated that this had been in respect with Mrs Courtney’s attitude to customers and staff, including the use of abusive language to describe other employees.  A subsequent disciplinary “review” meeting was scheduled for December 2015, but did not transpire.  
Mrs Courtney disputed that these meetings were proper disciplinary meetings but in any event there were no findings in relation to any previous disciplinary matters and none of the previous disciplinary issues against Mrs Courtney was raised by the respondent at the time of the dismissal. 

 

Events of the 21 January 2016

 

21.      The dismissals arose mainly out of events on 21 January 2016.  Every aspect of events on that occasion was hotly disputed between the parties.  In Mrs Courtney’s case an allegation of fraud was later added to the dismissal charges and it formed the basis of her dismissal.  This charge was upheld on appeal but she was advised at this hearing that it had not been taken into account on appeal.

           

The Removal of the Laptop

 

22.      The event arose when Mrs Boyd went to collect a company owned laptop used exclusively by Mrs Courtney from the Mourneview premises.  When Mr Courtney challenged Mrs Boyd as to why she was removing Mrs Courtney’s laptop, Mrs Boyd stated that she had been asked to collect it as it had been reported as going slow and she was to bring it for repairs.  Mrs Courtney was out of the office at the hairdresser’s.  Mr Courtney telephoned his wife and advised her that Mrs Boyd was removing the laptop.  Mrs Courtney told her husband not to let Mrs Boyd take the laptop.  She continued to have a conversation with him to this effect and left the hairdresser’s at once.  She arrived at the office a short time later.

 

The Alleged Assault

 

23.      In the meantime Mr Courtney remonstrated with Mrs Boyd, both in the office and after she had had climbed into the van to drive away.  CCTV footage showed Mr Courtney standing beside the van, talking to Mrs Boyd and trying to obtain the laptop, and at one point demonstrated that he took his feet off the ground in an attempt to climb into the van to reach and remove the laptop himself. 

 

24.      This particular aspect of the incident of 21 January 2016 subsequently became the subject of an assault charge.  It was heard at Downpatrick Magistrates Court.  The Magistrate also watched the CCTV footage.  He acquitted Mr Courtney of assaulting Wendy Boyd stating that “although Mr Courtney may have come in contact with Mrs Boyd while reaching over her, not every contact is a battery”.  The Claimants’ barrister submitted that this statement implies that the Magistrate had not been sure that Mr Courtney had made physical contact with Mrs Boyd or, if he had done so, the Magistrate had not been satisfied that any such contact had amounted to an assault or battery.

          

25.      Mrs Boyd’s evidence was also that although she had gone into work the following day she was in so much pain that she left an hour later and went to Daisy Hill Hospital.  She stated that she was advised that she had muscular bruising to her back.  She subsequently attended her own GP who she said discovered bruising to her leg and arm and she was signed off sick for a week.

 

26.      As Mrs Boyd provided no medical evidence to validate any of this evidence the Tribunal regarded it with some scepticism.  The Tribunal viewed Mrs Boyd on the CCTV footage after the alleged assault and she showed no sign of being in pain or any discomfort. The Tribunal also noted that Mrs Boyd had been able to go into work the next day and work for an hour before going to the hospital.  The Tribunal noted that while further bruising may have been discovered over the weekend it was unclear as to its cause or whether the sick line was given for bruising or for another reason entirely.

 

27.      The Tribunal concluded that while Mr Courtney was seen on CCTV reaching well into the van, it was unable to conclude that in doing so he had made any contact with Mrs Boyd.  The footage of what happened inside the van, whether Mr Courtney made contact with Mrs Boyd or whether she had pulled out of his way, was unclear.  In view of this and the fact that Mr Courtney had been acquitted, albeit at the higher criminal standard of proof, the Tribunal was unable to conclude that Mrs Boyd has been assaulted as she described or at all.

 

28.      Shortly after this occurred, Mrs Courtney arrived on the scene, fresh from the hairdresser’s, and still in colour dye foils and wet hair.  While there were other available spaces in the carpark, she parked her car immediately behind the company van.  The respondent alleged that this was a deliberate act, to block Mrs Boyd’s exit as there were clearly empty parking spaces nearby.  Mrs Courtney stated that she just parked there in her rush to get to the bottom of things and maintained that in any event there was still room for the van to move off.

 

29.      Mrs Courtney also tried to obtain the laptop from Mrs Boyd without success.
Mrs Boyd was on the phone to Mr Milne relaying the events and at one point
Mrs Courtney stated that Mrs Boyd had said down the phone, …”yes, Alan, they must have something to hide”.

 

30.      Mrs Courtney’s evidence was that she spoke to Mr Milne herself and he eventually agreed to allow her to access the laptop.  On this direction Mrs Boyd returned the laptop to Mrs Courtney who took it back into to the office and proceeded to attempt to download her personal information data and files onto her own personal laptop.  However while she was doing this she felt under pressure and scrutiny from Mrs Boyd who stood behind her while she was doing this.  The CCTV footage shows Mrs Boyd standing over Mrs Courtney as she described.  Mrs Courtney eventually decided to remove herself and the laptop into the family home adjacent to the office in order to complete the task in peace.  She stated that she believed she was removing herself from a contentious situation.  She also stated that there was insufficient memory on her own laptop to accommodate the files she needed to transfer to it.  

 

31.      When Mrs Courtney moved towards the house and entered it, Mrs Boyd attempted to follow her inside.  Mr Courtney advised Mrs Boyd that she was entering their private property but stated that Mrs Boyd told her that as he and Mrs Courtney did not own their house they had no rights over it.  Mrs Boyd attempted to enter the house but got her foot caught in the door.  Mrs Boyd accused Mr and Mrs Courtney of having assaulted her again.

 

32.      Mrs Courtney stated that she telephoned Mr Milne again to ask for more time to work on the laptop and she stated that Mr Milne told her to return the laptop immediately or he would dismiss her.  This became the basis of the charge of “refusing to obey a reasonable work instruction”.  Eventually Mr Courtney returned the laptop to Mrs Boyd. 

 

Ongoing Deterioration of Relationships/Fire on the Site

 

33.      The claimants stated that the respondent’s hostility towards them grew over the next few weeks and there was much to-ing and fro-ing between the claimants and the respondent in relation to security cameras allegedly being trained on their house, disputes over keys, emails about park business and changing locks on the back door of their house.

 

34.      On the Saturday night after the laptop incident one of the caravans went on fire.  When Mr Milne arrived on the scene he was allegedly verbally abusive towards
Mrs Courtney.  The claimants were disturbed by this event and by what they said was Mr Milne’s hostility towards them, in particular his question, “why the xxxx did you let them stay on the park last night?”

 

            The respondent’s representative described these allegations as “a tissue of nonsense”. 

 

The Disciplinary Process

 

35.      Approximately two hours after the incident Mr Milne arrived at the door of the Courtney home with letters for both claimants inviting them to disciplinary meetings the following day.  In relation to Mr Courtney, his letter stated that the reason for his meeting was that:

 

“as per your terms and conditions of employment and the rules and procedures of the Company handbook, that the incident today is gross misconduct on the following grounds:

 

(1)        refusal to carry out a reasonable work instruction;

 

(2)        gross subordination; and

 

(3)        physically violent behaviour”

 

            In relation to Mrs Courtney, her letter advised that:

 

“the incident today is gross misconduct on the following grounds”:

 

(1)        refusal to carry out reasonable work instruction; and

 

(2)        gross subordination.”

 

            The letters stated that the disciplinary meeting would take place the next day
(22 January 2016) at 4.00 pm at Head Office.  Only one meeting was arranged and the claimants were invited to the same meeting.

 

36.      "The Tribunal noted that in the letters inviting them to disciplinary hearings the claimants were provided with no details of the alleged charges against them other than the charges themselves. It was not until the hearing that the claimants learned that "refusal to carry out a reasonable work instruction" related to refusal to hand over a laptop. In respect of the charge of "gross insubordination" the claimants learned that this referred to the alleged use of foul language by Mrs Courtney during a phone call. There was no clarification of this charge as alleged against Mr Courtney. 

 

 

Mr Fearon’s Role

 

37.      In his witness statement Mr Fearon stated that when he had been tasked by Mr Milne to carry out the formal disciplinary process, he had reviewed the CCTV footage of the incident and decided that there was sufficient evidence from it to warrant a disciplinary meeting for both claimants as soon as possible.  He stated that he typed up the letters of invitation to the disciplinary meeting and that
Mr Milne’s signature on them had been a mistake.  Mr Milne, for his part, stated that the letters had been typed by Mr Fearon but that they were from him.

 

38.      At the hearing Mr Fearon accepted that he had no human resource qualifications, or any training in or experience of conducting any disciplinary processes and that on receiving the direction to carry out a formal disciplinary hearing he had at once contacted the company’s HR support, Prestige, and had taken their advice.  There was no mention of his having done so in his witness statement.  There was no reference to this in Mr Milne’s witness statement either.  When Mr Fearon referred to Prestige at the hearing, Mr Moore, the respondent’s representative, stated that this was the first time he had heard of this and he had not deliberately omitted any reference to this from the witness statements.

 

39.      There was no evidence produced during any of the days of the hearing of any contact with Prestige.  Mr Fearon stated that he had taken advice over the phone prior to issuing the letters of invitation to the disciplinary meeting and had drafted these letters using Prestige templates but these templates were never produced.

 

40.      The claimants requested that the meetings be postponed until they had someone to accompany them.  Both claimants were advised by return that their disciplinary meetings would reconvene on Monday 25 January 2016. 

 

41.      On the day of the postponed meeting, 25 January, Mrs Courtney wrote to Mr Milne to request a further postponement as a trade union representative they had engaged was unable to attend.  She stated that they would be in a position to attend such meetings after the 27 January 2016.  Mrs Courtney also expressed her concerns that they would not be able to get a fair hearing.  She stated a number of reasons for this which included her allegations that Mr Milne himself had been involved in the incident by giving Mrs Boyd instructions throughout the incident, by threatening Mrs Courtney during the incident that he would sack her if she did not return the laptop, the fact that Mr Milne had handed them their disciplinary letters just two hours after the incident had occurred and Mr Milne’s subsequent hostility towards them the day after the fire.  The claimants also submitted sick certificates stating that they were unfit for work, citing work-related stress.

 

42.      Mr Fearon confirmed that while he had received this letter he had not investigated or queried whether any of Mrs Courtney’s allegations of bias were valid.  He also stated that, even if some of the points had been valid, none of them would have amounted to bias or compromised the disciplinary process.

 

43.      In his reply on the same date Mr Fearon advised Mrs Courtney that the disciplinary meeting had been had been postponed until Tuesday 26 January 2016.

 

44.      In a letter of 26 January 2016 Mr Fearon wrote to advise Mrs Courtney that the disciplinary meeting was postponed until 28 January.  He acknowledged the sick certificates submitted by the claimants and their unfitness to work but stated that the “ongoing process” was a contributor to that stress and that he would make appropriate adjustments to facilitate their fitness and attendance at the meeting.  He proposed that the meeting be held at the caravan park office or in the park’s recreational room to avoid the burden of travel and that there could be as many additional breaks during the meeting as they required.

 

45.      In a second letter on 26 January Mr Fearon stated that the disciplinary meeting had been postponed till the 28 January because a further issue of “potential fraud” against Mrs Courtney was to be investigated.  This letter purported to attach the details of the alleged fraud.  At the hearing the Tribunal was advised that the attached documents, one of which was dated 22 August 2015, purported to show that Mrs Milne had signed a customer document herself, instead of the customer. There was no other cogent explanation or any further details given as to how these documents may have amounted to potential fraud.  

 

46.      Neither Mr Milne nor Mr Fearon made any reference to the alleged fraud in their witness statements.  For his part in his witness statement Mr Milne went into some detail about allegedly discovering Mrs Courtney had been paying cash for goods on delivery to the caravan park and allegedly selling storage boxes and keeping the money for herself, which he stated was “tantamount to theft”.  He claimed that he had made these discoveries at some time between May and September 2015. However these allegations were not investigated nor put to Mrs Courtney during the dismissal process or at this hearing.   

 

47.      On 27 January Mrs Courtney sent a further request that the disciplinary process could be put on hold on the basis that her husband had a meeting with the PSNI re the alleged assault and as this formed part of their defence she wanted this matter resolved prior to the disciplinary meeting.  Additionally Mrs Courtney stated that their GP had advised them both that they were not fit to attend.

 

48.      Mr Fearon replied that having postponed the matter three times that he intended to proceed on 28 January in their absence.  He stated in these circumstances the company would be, “in an effort to fully resolve these issues, willing to accept a written representation to the allegations made”.

 

49.      On 27 January 2016 the claimants wrote again to the respondents stating that they were still unfit to attend the meeting and wanted it postponed until they were fit and able to attend.  By return Mr Fearon advised the claimants they could submit written representations before close of business on 1 February 2016.  In this letter he attached a number of CCTV stills.  The claimants were not shown CCTV footage at any stage of the disciplinary process and saw it for the first time at the commencement of this hearing. 

 

50.      In his witness statement Mr Fearon stated that it was at this stage he requested statements from Mrs Boyd and Darren Baird.  However both these statements as produced at this hearing were dated 22 January 2016.            

 

51.      On 31 January 2016 the claimants wrote again to Mr Fearon and advised that they were still unable to attend the meeting on 1 February 2016 due to ill-health or to provide any written submissions by that date.  They indicated that they would be happy to provide a report from their General Practitioner. 

 

52.      Throughout the process the claimants had asked the respondents to clarify the charges against them and to provide them with details of the evidence on which they sought to rely.  Nothing was ever produced and on 1 February 2016
Mrs Courtney attended the Newry office and spoke to Mr Fearon.  She submitted Subject Access Requests seeking the materials they required to defend themselves.  She submitted a letter from Mr Courtney and a Grievance document from herself.

 

53.      In her covering letter Mrs Courtney described the document as a “formal grievance/complaint” and stated that it “should additionally address any concerns raised by my employer in which I am implicated”.  She continued “I ask that this statement is considered under the Overlapping Dispute Rule”. 

 

54.      Mr Fearon stated that he reviewed the letter from Mr Courtney.  It contained a reiteration of Mr Courtney’s position that his GP had stated that he was unfit to take any part in the disciplinary process.  Mr Fearon stated that, when he noted
Mr Courtney’s letter made no comment in relation to the disciplinary charges, he reviewed the CCTV footage again and felt that he had no choice but the uphold the allegations against him.

 

55.      Mr Fearon added that he went on to review Mrs Courtney’s Grievance document and stated that as it did not address any of the issues raised in his previous correspondence to her and she had offered no evidence on her own behalf he stated that on this basis and “the evidence he had before him” he felt he had no option but to uphold the allegations against her.

 

56.      There was no evidence given as to what “the evidence before him” was.  The Tribunal was unable to conclude that this evidence included the witness statements of Mrs Boyd and Darren Baird as Mr Fearon’s evidence was that it was only at this stage did he request these.  The Tribunal was offered no explanation as to why Mr Fearon stated that he had only sought these statements on 31 January or 1 February 2016 or why, when these were produced at hearing, they were dated 22 January 2016.

 

57.      It was clear that Mr Fearon took this decision on 1 February 2016, ahead of the proposed meeting scheduled for 2 February.  On that latter date Mr Fearon wrote to both claimants stating that they had been dismissed.  He advised each of them in two separate letters that all allegations against both of them had been upheld, including the allegation of potential fraud against Mrs Courtney.  Mr Fearon offered them both the right to appeal.  He advised them that if they did appeal it would be heard by an independent company MCL Employment Law and by Mr Patrick Moore, LL.B.

 

58.      In his letter to Mrs Courtney, Mr Fearon noted her Grievance and advised her that Ms Sinead McFadden MCIPD HR Manager in First Housing Derry would be the independent person who would conduct the investigation into it. However in his evidence Mr Moore stated that he later decided to handle it himself. This investigation never took place.

 

59.      Mr Fearon further advised Mrs Courtney that it had been noted that while she had been unable to attend any of the disciplinary meetings or to submit a written defence, she nevertheless had been able to type out a 12 page grievance letter and was fit enough to hand deliver it to Head Office.  It was clear at the hearing of this case that this had been a factor that was taken into consideration against Mrs Courtney when reaching the decision to dismiss her.  

 

60.      Mr Fearon requested that both the claimants vacate the company premises that same day (including their home) and leave all Company materials in the office.  They did this.

 

Appeal Stage/Mr Moore’s Involvement

 

The Appeals

 

61.      By letters dated 9 February 2016, both claimants lodged an appeal against the decision to dismiss them.  In his response of the same date written jointly to Mr and Mrs Courtney, Mr Fearon reiterated “just so there is no misunderstanding, your contract was terminated with immediate effect for gross misconduct on 2 February 2016”. 

 

62.      Mr Fearon went on to state that both had been asked to attend several disciplinary hearings and after their refusal to attend after the third rescheduled meeting, their written submissions had been sought.  The letter continued: “Bizarrely you both cited, “work-related stress” as a reason why you could not respond in writing and then promptly submitted a 12 page grievance in which in itself, was contradictory in that you could write a 12 page grievance and could not respond to the disciplinary allegations”. 

 

63.      The Tribunal noted that Mr Courtney had not submitted a Grievance yet the fact that a long written Grievance document had been submitted by his wife was taken into consideration against them both.

 

64.      Mr Fearon’s letter added: “On reading your latest “appeal letter” (his parentheses), I consider it to be nothing more than a rehashing of your grievance, however I have asked Mr Patrick Moore LLB of MCL Employment Law Belfast to hear your appeal.” 

 

65.      Mr Fearon added that Mr Moore had advised him that there was no Overlapping Dispute Rule in all of Britain but suggested that the claimants were referring to an English Employment Tribunal authority which recommends that grievance and disciplinary matters to be heard together if predicated on the same sets of facts.  Mr Fearon’s letter concluded, “If that is the case, Mr Moore is content to hear both your grievance and your disciplinary hearing together.”  There was no further reference to Sinead McFadden.

 

66.      On the same date, both the claimants received a response from Mr Fearon to their Subject Access Requests and were advised that the information held on their personnel files related only to their names, addresses, dates of birth and National Insurance numbers.

 

67.      By letter dated 17 February 2016 from Mr Fearon the claimants were jointly advised that their appeals would be heard by Patrick Moore LLB of MCL Employment Law, on 23 February 2016.  They were advised that if they failed to attend or failed to provide a reasonable excuse for their non-attendance, this meeting would proceed in their absence.  The letter also added that the claimants’ request for company emails, time-sheets et cetera as part of their subject access request was refused on the basis that all company papers were private company information and not for public consumption.

 

68.      By letter dated 22 February 2016 the claimants wrote to Mr Fearon and confirmed that they would be unable to attend as they had been advised by their General Practitioner that they were not ready to have this meeting due to the amount of distress, bullying tactics and unreasonable behaviour they had suffered throughout the process.  The claimants also stated that they believed they had not received a fair hearing nor would they receive such a one at the appeal, citing the following:-

 

·                     “No proper investigation before issuing disciplinary in the first instance.

 

·                    As Mr Fearon and Alan Milne were on the phone during the alleged incident with the laptop Mr Fearon was biased in the disciplinary or investigation process.

 

·                     Not following statutory minimum procedures for conducting these meetings.

 

·                    The days after the incident were full of incidents and episodes that could only be described as bullying, e.g, changing of all door locks, turning cameras directly onto our home, verbal abuse, forcing us to leave, cutting access off to our phones, bombarding with emails after you were given a GP’s notification of work-related stress and making no effort to seek a professional opinion in relation the claimants’ health.  I might add that this was after Alan Milne came down to the park and dismissed us.

 

·                    Failure to hear any grievances leading up to this incident or even acknowledge the current grievances.

 

·                    Refusal under Data Protection legislation to provide details which would prove the allegations were totally false.

 

·                    Pre-judging the evidence without any proper consideration of the evidence.

 

·                     Trolling through emails to find mud and hope it would stick.

 

·                     Advertising the jobs within two days of the dismissal.”

 

Appeals Outcome

 

69.      The appeals proceed in the absence of the claimants.  Mr Moore stated at this hearing that he too had written to the claimants, to try to get them to attend the appeals and stated that these letters would be in the bundle.  They were not.  By letters dated 28 March 2016 Patrick Moore LLB, who signed the letters “Managing Director on behalf of Milne Holiday Parks”, each of the claimants was advised, “Having investigated all of your complaints and given your refusal to attend in person, I have not upheld any of the complaints raised in your grievance, nor had I upheld any of your grounds for appeal, therefore the decision to dismiss you in my view was a fair one and was predicated on a thorough investigation by Mr Fearon”. 

 

70.      Mr Moore’s letters to both claimants added the following, “Indeed I found it strange and contradictory that both of you refused to address the appeal hearing in person or in writing despite being given several opportunities, all the while citing sick lines from your GP as your main reason for not being able to do so, yet you were both able to submit an 18 page fully referenced grievance letter.  Please note that you have now exercised your right of appeal under the Company disciplinary procedure and that this decision is final.”

 

71.      The Tribunal concluded that Mr Moore had taken into consideration against both claimants the fact that although they had said they were not fit to attend the appeals meeting they had been fit enough to submit a 12 page Grievance document.  The Tribunal concluded that this was unfair, for two reasons:-

 

72.      In the first place the respondent themselves indicated that they accepted the claimants’ sick lines as valid, acknowledging that they were at least less fit to deal with work related matters and offered to make adjustments to the disciplinary process to accommodate this (letter dated 26 January 2016) and they expressly stated that they were willing to accept a written submission (letter dated
27 January 2016).  In these circumstances the Tribunal concluded that it was unfair of the respondent thereafter to penalise the claimants for taking up the offer of submitting written representations.

 

73.      In the second place the Tribunal noted that Mr Moore replicated Mr Fearon’s mistake in (improperly) penalising both claimants on this point when only
Mrs Courtney had lodged a Grievance.

 

74.      The Tribunal concluded that the sometimes individual, sometimes joint, approach to the claimants’ disciplinary process was indicative of a carelessness or recklessness to the disciplinary process that amounted to procedural unfairness.  This was borne out by Mr Moore’s extraordinary evidence at this hearing when he said that, although he had advised Mrs Courtney that he had not upheld her appeal and that therefore the decision to dismiss her on all three charges against her had been fair, he stated he had not either investigated the allegation of fraud or taken it into account at all.  He said he had thought this allegation was a “red herring”.  He had not informed Mrs Courtney of this view in the appeal outcome letter and the first she heard that she had not been dismissed for alleged fraud was when Mr Moore made this extraordinary statement. 

 

75.      This evidence was extraordinary, for a number of reasons; Mr Moore stated that he had not investigated the allegation but had still reached the conclusion that it was a red herring; he had not advised Mrs Courtney nor the respondent of this conclusion at the appeal stage or at any time before this hearing.  He produced no rationale or findings on the point.  He did not elucidate as to why or what he meant by what he said.

 

Mr Moore’s Engagement and Involvement with the Respondent.

 

76.      The timing of Mr Moore’s involvement and his role in this matter was the subject of contention.  The respondent’s case was that Mr Moore had been contacted at the end of January, had been invited to set out his stall in an informal meeting as to what services his firm could provide and that he had not been engaged by the respondent until March 2016 when he was asked to conduct the appeals.  The claimants contended that Mr Moore acted as the company adviser from the end of January 2016 and throughout the process and as such he was not an independent, impartial person to have conducted the appeals.

 

77.      In his own witness statement Mr Moore indicated that the respondent first contacted him “around the end of January 2016”.  He stated that Mr Milne had rung him and told him that he was having problems with a husband and wife employee team and that he wanted to be sure that he was doing everything right and that he was following the correct procedure.  He stated that he agreed to drive down to meet Mr Milne and Mr Fearon.

 

78.      Mr Moore stated that he had explained to Mr Milne on the phone the need to adhere to the statutory dispute resolution procedures and that he had outlined this to both men.  His statement added that from what they told him it was apparent to him that they had adhered to the procedures up until that point.  He added that “because staff had been threatened (he told them that) they were in fact exempt from carrying out any disciplinary procedure but it would be better if they tried to ascertain
Ms Courtney and Mr Courtney’s version of events”.

 

79.      Mr Moore stated that it was clear to him that both men were exasperated with the claimants, Mr Milne for their behaviour during their employment and Mr Fearon for their “abject failure to attend the scheduled disciplinary hearing” (Mr Moore’s words).

 

80.      At the Tribunal hearing it was put to Mr Moore by the claimants’ representative that he had been given the respondent’s version of events in such detail that he ought to have precluded himself from hearing the appeals and that he had been advising the respondent from their initial contact and throughout the disciplinary process. 
Mr Moore denied that he had heard too much of the matter to compromise his impartiality and also said that he only became involved with the respondent again at the appeals stage.

 

81.      However at this hearing Mr Moore gave a different version of his engagement and involvement from that described in his witness statement.  In his cross examination Mr Moore stated that he had received a phone call from Mr Milne who had asked him to attend his offices regarding staff problems.  Mr Moore stated that he had told Mr Milne that, rather than go through the details over the phone, he could go into details at a meeting.  However, contrary to his witness statement Mr Moore stated under cross examination that at the meeting he had asked Mr Milne specifically and repeatedly not to tell him any details about the matter.  Additionally and contrary to his witness statement Mr Moore denied that he knew at this stage that he was being asked to do a disciplinary process or being asked if the company was using the correct procedures.

 

82.      At the Tribunal and again contrary to his witness statement Mr Moore stated that he told Mr Milne that he would call into the office sometime when he was out and about doing other calls.  At this hearing he described this visit as a “sales pitch” rather than a direct response to an invitation to advise on the matter.

 

83.      In any event Mr Moore met both Mr Milne and Mr Fearon at their office on an unspecified date.  He was accompanied by two of his own employees, one of whom was a trainee in his office.  He stated that after an initial friendly session of telling jokes and stories they “then got down to serious business”.  Mr Milne told him that a member of staff had been assaulted.  Mr Moore stated that he explained to Mr Milne that in these circumstances Rule 11c applied and they were exempt from following the statutory procedure.  He added that he had told Mr Milne that it would be better to hear everyone’s point of view.  It was not made clear if Mr Moore advised that this might only apply to one of the claimants.

 

84.      He said that he had gathered that the two men were exasperated with the claimants but repeated that he had not gone into the specific details of the matter.  Mr Moore stated that there were no notes taken at this meeting.

 

85.      Mr Moore’s evidence was that he became involved again only when he was contacted by Mr Milne and asked to conduct the claimants’ appeals.  During the hearing Mr Moore agreed to provide the Tribunal with his contract with the respondent but he failed to do so.   

 

86.      Mr Moore’s accounts of his engagement and involvement differ again from the accounts of Mr Milne and Mr Fearon.  Neither of them referred to Mr Moore’s engagement or involvement in their witness statements but gave evidence about it under cross examination.

 

87.      At the hearing Mr Milne stated that he had he had spoken to the claimants’ previous employer who had given him Mr Moore’s details “as a good HR contact”.  He stated that he had rung Mr Moore “towards the end of January”.  Mr Milne stated that he had advised Mr Moore about the incident and that he needed someone to do the disciplinary.  He then stated that he had asked Mr Moore to “…come in and see us sometime...”  Mr Milne stated that when Mr Moore did visit the office it was to see Mr Fearon only, that he had greeted him on arrival and that he had been “in and out” of the meeting and that he was unable to remember whether he had been present when Mr Moore gave advice.  Mr Milne also stated that he could not remember when he had signed the contract with Mr Moore.

 

88.      At the hearing Mr Fearon stated that, following a discussion Mrs Courtney had with Mr Milne after Mrs Courtney had spoken to her own HR specialist, Mr Moore had been invited to the office for an informal meeting.  At first Mr Fearon said he could not remember much about the meeting but recalled Mr Moore “telling stories” about his work.  He said that it was more of an informal chat.  However he later stated that “Pat was asked for advice.  He asked if we had followed procedure and then said that we had.”  However he also stated that Mr Moore had not given him advice as to how to conduct the disciplinary process as he said he was getting advice on this from Prestige.  When Mr Fearon was asked what else Mr Moore had said about disciplinary issues he said that he could not remember and stated that Mr Moore had only called into the office “as a courtesy” when he was en route to somewhere else.

 

89.      The Tribunal noted a marked similarity between the letters sent to the claimants, signed off by Mr Fearon, before the appeals stage and those sent to them by Mr Moore at the appeals stage.  Mr Moore denied drafting any correspondence before the appeals stage.

 

THE TRIBUNAL’S FINDINGS AND CONCLUSIONS

 

Mr Moore’s Involvement/ Mr Moore’s Role

 

90.      The Tribunal considered to be a very serious matter.  If it were found to be the case that Mr Moore had been adviser to the respondent and the independent appeal chair, this fact alone would completely undermine the integrity of the whole disciplinary process by this grossly unfair situation. 

 

91.      However this was the conclusion of the Tribunal.  The Tribunal was unimpressed by the divergence in Mr Moore’s evidence between his witness statement and his evidence at the hearing particularly in relation to his engagement by and involvement with the respondent.  Also the Tribunal was unimpressed by
Mr Moore’s demeanour and manner in giving his evidence which was at times evasive, elusive and unnecessarily combative. 

 

92.      The Tribunal also noted the divergent, confused and contradictory evidence on this point from Mr Milne and Mr Fearon.  The Tribunal concluded that the varying and contradictory accounts amounted to a smokescreen to conceal the fact that
Mr Moore had been advising the respondent throughout the disciplinary process well before the appeals stage and probably from his first contact with them in January 2016.

 

93.      However the Tribunal also concluded that even if Mr Moore had become the respondent’s advisor after the appeals, this too rendered unfair the decision to dismiss.  Case law has informed tribunals that it is the whole disciplinary process that must be scrutinised for fairness, so that, for example, unfairness at the early stages of the process may be redeemed at the appeal stage.  So, even if Mr Moore only became the respondent’s advisor after the appeals stage, his doing so would leave the appeals stage vulnerable to the suggestion and possibility that his conclusions were neither independent nor impartial and leave the process open to the charge of unfairness.

 

94.      The Tribunal concluded that Mr Moore did compromise his impartiality in this way too.  As an externally employed independent appeal chair it ought to have been his priority to keep his distance from the affairs of the respondent, either before or after conducting the appeals.

 

95.      Accordingly the Tribunal decided that Mr Moore, at whatever stage, rendered the entire disciplinary process unfair.

 

96.      However, the Tribunal also considered the disciplinary process itself.  The Tribunal concluded that the dismissal of the claimants was unfair, both automatically and “ordinarily” on the basis of how it was conducted.  The respondent’s obligation under the statutory procedure governing both procedures is not simply to comply with the three steps or follow process, without more.  The statutory procedure has the inherent requirement that it must be carried out in a reasonable manner.  The respondent’s hasty actions after the incident and in the days and weeks thereafter were so unreasonable as to render the dismissals automatically unfair.

 

97.      The Tribunal concluded that the immediate production of disciplinary charges only two hours after the incident was unreasonable.  The respondents assertion that this was based on the CCTV footage alone was unsustainable as this’ footage related to only one of the charges, the physical attack allegedly carried out by only one of the claimants.  Also as it was made clear no investigation had taken place as
Mr Fearon’s subsequent evidence made clear that he did not seek out statements from any witnesses until 31 January/1 February 2016.

 

98.      The Tribunal also concluded that the respondent’s requirement that the claimants attend a disciplinary meeting less than 24 hours from the date of the invitation to attend was unreasonable. The subsequent next-day adjournments were also unreasonable, given the nature of the requests, for representation and ill health.

 

99.      The Tribunal also concluded that the fact that the disciplinary charges were not fully articulated to the claimants until this hearing was unreasonable.

 

100.    The Tribunal concluded that it was unreasonable for the respondent to hold against Mrs Courtney her having submitted the written grievance document, in spite of their having suggested this in the first place.

 

101.    The Tribunal concluded, given the haste of and chaotic nature of the disciplinary process, the decision to dismiss the claimants was not within the band of reasonable responses.

 

102.    Accordingly, the Tribunal upholds the claimants’ claims of unfair dismissal.

 

Breach of Contract

 

103.    The Tribunal accepted that there had been a breach of the claimants’ contract.  The terms of the contract around company property were clear; the property was to be returned on request.  There was no such request.  And in any event, the property (the laptop) was returned.

 

104.    Accordingly the Tribunal concluded that the respondent breached the claimants’ contract in not requesting the return of the laptop without “seizing” it in such a dramatic manner.

 

105.    The claimant’s claims for unfair dismissal and breach of contract are upheld.  The Tribunal orders there to be a joint remedies and costs hearing.

 

 

 

Employment Judge:

 

 

Date and place of hearing:          9, 11 & 16 January and 8 & 9 February 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: