Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1576/16 IT

 

CLAIMANT: Peter Laffin

 

RESPONDENT: Peacock Stores Limited

 

DECISION

 

The unanimous decision of the tribunal is as follows:-

 

The claimant was unfairly dismissed by the respondent and the respondent is ordered to pay the claimant compensation of £1921.16.

 

 

Constitution of Tribunal:

 

Constitution of Tribunal:

Employment Judge: Ms J Turkington

Members: Mr A Carlin

Mr B Collins

 

 

Appearances:

 

The claimant appeared at the hearing and was represented by Brian McKee, Barrister-at-Law, instructed by Donard King & Co, solicitors.

 

The respondent appeared at the hearing and was represented by Ms R Best, Barrister-at-Law, instructed by Gateley Plc, solicitors.

 

The Claim

 

1.             The claim was a claim for unfair dismissal.

 

The Issues

 

2.             The issues to be determined by the tribunal were as follows:-

 

(a)           The tribunal had to consider whether the dismissal of the claimant was automatically unfair due to non-completion of the statutory dismissal procedure.

 

(b)           In the event that the tribunal found that the claimant was not automatically unfairly dismissed, the tribunal had to determine whether the respondent had shown the reason for dismissal, whether that reason was a potentially fair reason and whether in light of the reason shown, the dismissal was fair or unfair in all the circumstances.

 

(c)           In relation to remedy, the claimant sought compensation only and, in the event of the tribunal finding that the claimant had been unfairly dismissed, the parties reached agreement in respect of the sums due to the claimant in respect of the basic award and compensatory award. Whilst the parties agreed a sum in respect of notice pay, the claim form did not contain any claim in respect of notice pay.

 

Contentions of the Parties

 

3. Counsel for the respondent contended that the claimant was dismissed for gross misconduct and that the accounts given by the claimant had changed through the disciplinary process. She accepted that this case was very much focused on the sanction applied to the claimant since the claimant had accepted that most of the allegations against him were factually correct. The respondent's counsel also contended that any defects in the procedure adopted by the respondent were corrected on appeal. It was contended on behalf of the respondent that dismissal was within the band of reasonable responses given the nature of the claimant's conduct. In the alternative, the respondent's counsel argued that any award to the claimant should be reduced by up to 100% by reason of contributory fault.

 

4. The claimant's counsel contended that the claimant's actions were all transparent and that the disciplinary proceedings related to only one incident involving a sum of £11.41. Counsel made the case that the claimant was not provided with all relevant documents during the disciplinary process. He contended that the sanction of dismissal was clearly outside the band of reasonable responses and emphasised that the purpose of disciplinary proceedings should normally be to provide an opportunity to improve. Finally, counsel for the claimant argued that having taken additional statements in the course of the appeal process, it was fundamentally unfair for the respondent to decide not to allow the claimant to comment on that material.

 

Sources of Evidence

 

5. The tribunal heard oral evidence from Mr Kennedy and Mrs Lamb on behalf of the respondent and from the claimant on his own behalf. The parties also referred the tribunal to a number of documents in the tribunal bundle.

Facts of the Case

 

6. Having read the witness statements of the witnesses and heard the oral evidence given by all the witnesses at the hearing and considered all the documents referred to in evidence, the tribunal found the following relevant facts:-

 

The claimant commenced the relevant period of employment with the respondent on 6 April 2012. The respondent is a large employer with 460 stores throughout the UK and thousands of employees.

 

7. The claimant had previously worked for a related company from 2004. He was made redundant when that company became insolvent, but was re-employed after a short gap of a few weeks. Prior to his redundancy, the claimant was Deputy Manager of a large store in Donegall Place, Belfast.

 

8. On his re-employment, the claimant worked initially as a Supervisor in the Park Centre Store, then he was asked to move to the respondent's store in the Cityside Retail Park. From 2014, the claimant also managed the Armagh store, spending 2 days per week there. This arrangement continued until May 2015.

 

9. It was accepted by both the claimant and the respondent's Regional Manager Mr Kennedy in their evidence that there was some awkwardness in the working relationship between them. This seems to have arisen at or been exacerbated by something which took place at a meeting in January 2016.

 

10. Prior to the disciplinary proceedings which led to the claimant's dismissal, the claimant had no disciplinary record.

 

11. The respondent had an arrangement whereby, as a reward for hard work over the busy Christmas and New Year period, the company would contribute £15 per employee towards a party in the New Year.

 

12. The arrangements in respect of this party were sent to store managers by the respondent's Retail Support department in early December 2015. The relevant information was sent via the respondent's InTouch information portal. Managers were required to complete an initial survey to determine staff interest in such a party. The claimant completed his survey and submitted this on 9 December 2015. A document headed "Store New Year Party 15/16" and referred to throughout the process as the "Terms and Conditions document" was attached to the same email notification as the staff survey submitted by the claimant.

 

13. The claimant and the staff in his store had planned a party at a club in Belfast to be held at the end of January 2016. The claimant arranged for staff to sign in advance a "signing in" sheet in respect of this event.

 

14. The party did not take place as planned due to a number of staff being unavailable. The claimant was aware that the money representing the respondent's contribution to the party had to be spent by the end of January. In the event, the claimant decided, as an alternative, that the money should instead be spent on buying items from a local supermarket to be shared out amongst the staff.

 

15. There was some dispute at the hearing as to whether the instruction given by the claimant was to buy "drinks and nibbles" or just "drinks" and as to whether drinks included soft drinks or referred to alcoholic drinks only. The tribunal returns to this point at a later stage.

 

16. It was accepted by both parties that the staff member who was asked by the claimant to purchase items from the supermarket purchased alcohol only. These drinks were brought back to the respondent's shop and stored in a store room until taken home by staff at a later stage. The receipt obtained from the supermarket confirmed that the total spent was £191.41.

 

17. The claimant submitted a claim to his Regional Manager Michael Kennedy in respect of the sum spent. This claim included the receipt from the supermarket. There was absolutely no attempt on the part of the claimant to hide either the total sum that was spent or how it was spent.

 

18. In carrying out routine checks on the documents submitted by the claimant, the respondent's Retail Loss PreventionTeam noted some discrepancies in this claim. These included a discrepancy between the date of the proposed party and the date of the supermarket receipt.

 

19. On 21 March 2016, Katie Baird from the Loss Prevention Team attended at the claimant's store in order to interview him about the New Year's party allowance. The claimant was taken by surprise and was very shocked by this. He was given the right to be accompanied at this interview, but chose not to have a companion.

 

20. Katie Baird put to the claimant that a staff member, namely Deborah O'Neill, who had left the respondent's employment on or around 8 ^th January 2016 was not therefore eligible for the £15 New Year party allowance. The claimant's response at this investigatory interview was along the lines that he thought that if she was employed before Christmas, then she was entitled.

 

21. It was also put to the claimant that alcohol had been made available to staff who were under the age of 18. The claimant's response was that this was an oversight on his part.

 

22. The claimant stressed that he did not think he had been dishonest, he had not lied about any of this. With reference to making alcohol available to minors, Katie Baird also said that "nothing had happened, but it could have".

 

23. The claimant was suspended by the respondent immediately after this interview. By letter dated the same day, that is 21 March 2016, the respondent confirmed the claimant's suspension and invited him to a disciplinary hearing on Friday 25 March. The allegations against the claimant were described in this letter as relating to fraud, the misappropriation of company monies, failure to follow company instructions and gross negligence and were set out in bullet point form as follows:-

 

•                     " You advised your Regional Manager that 13 members of the store team would be attending the store's New Year party on 31 January 2016 which subsequently got cancelled and you used the £15 per head to buy alcohol from Tesco. You took £195 from the till via a "pay out" accordingly; you failed however to advise your Regional Manager that only 12 members of the team were still employees when the Company instruction was that money could only be claimed for current employees.

 

•                     You have failed to action a "pay in" for the balance of monies with regard to only 12 members of the team being employed at the time of the planned party on 31 March 2016, which subsequently resulted in you buying alcohol from Tesco for each member of staff, to the value of £15.

 

•                     You fraudulently claimed for the 1 member of the store team who had left the business prior to the New Year party which was planned for 31 January 2016; and used their £15 per head allowance to pay for more alcohol to give to the staff.

 

•                     You illegally purchased alcohol for 3 employees who were under 18 years old."

 

24. The claimant was informed of his right to be accompanied at the hearing and it was also indicated that the possible outcome of the hearing could be summary dismissal. Notes of investigatory meeting with the claimant were enclosed with this letter, but the claimant was not furnished with a copy of the respondent's Disciplinary Procedure.

 

25. The disciplinary hearing commenced on 25 March 2016 and was conducted by Michael Kennedy, Regional Manager. In advance of the hearing, Mr Kennedy was provided with a number of documents, including the notes of the investigation interview conducted by Katie Baird with the claimant, the New Year's party checklist, the Terms and Conditions document and the attendance sheet, the Tesco till receipt and the respondent's records relating to the expenditure of £191.41 on 5 February 2016. Mr Kennedy also received a copy of the notes of another interview with Michael Haveron conducted by Katie Baird on 21 March 2016.

 

26. The claimant was given the opportunity to be accompanied at the hearing and a work colleague attended with him. It became apparent at the outset of the hearing that the claimant had not received all the relevant documents, so the hearing was adjourned to a later date. In particular, the claimant asked for a copy of the notes of the investigation interview with Michael Haveron.

 

27. The disciplinary hearing was then re-convened on 31 March. At this hearing, the claimant said that he had not seen any of the rules relating to the New Year's party before the investigation interview with Katie Baird on 21 March 2016. Also, in the course of this hearing, the claimant said that he had sent a colleague round to Tesco to purchase "drink and stuff". The claimant pointed out that the staff member who he had asked to make the purchase, that is Toni Kane, had been mentioned in the course of the investigation, but had not been interviewed. The hearing was therefore adjourned again.

 

28. Following this adjournment, Mr Kennedy interviewed Toni Kane on 31 March 2016 and another employee Claire Lewsley on 1 April 2016. She had witnessed the conversation between the claimant and Toni Kane. In her interview, Toni Kane said that the claimant had instructed her to buy alcoholic drink only. Mr Kennedy considered that her account was consistent with the initial account given by the claimant to Katie Baird when he was first interviewed. When she was interviewed, Claire Lewsley said initially that she could not really remember, but then indicated that the claimant may have asked for "nibbles and biscuits etc" to be bought.

 

29. Mr Kennedy took the view that Claire Lewsley's evidence was "plainly wrong" and discounted it because it appeared to him that it was not consistent with the evidence of Toni Kane and the claimant's initial account.

 

30. The disciplinary hearing was then re-convened once again on 5 April 2016. The claimant was provided with the notes of Mr Kennedy's interview with Toni Kane, but not those of his interview with Claire Lewsley, it appears since Mr Kennedy had discounted her evidence as unreliable. The claimant was also not given a copy of the notes of the interview with Michael Haveron which Mr Kennedy considered did not take the matter any further. At the hearing, the claimant continued to say that he had not seen the terms and conditions relating to the New Year's party.

 

31. The disciplinary hearing was adjourned at 11.20 am. At 2.20 pm, the hearing was re-convened and Mr Kennedy announced his decision to the claimant. In the interim, Mr Kennedy's evidence was that he had prepared a document of more than 2 pages of closely typed script setting out his analysis of the evidence and his reasoning for his decision. The tribunal has some concerns about the veracity of this evidence regarding the timing of the preparation of this document and is not entirely convinced that the preparation only commenced during the break in this hearing.

 

32. On the basis that he had submitted 2 of the 3 documents which had been published together, Mr Kennedy concluded that the claimant had also received a copy of the terms and conditions document. He also concluded that, by having the sign in sheet signed in advance, the claimant had breached the respondent's instructions and this had led to a claim being made for an employee who no longer worked for the business. The claimant had therefore spent £11.41 of the allowance in respect of this former employee.

 

33. With regards to the dispute as to what the claimant had instructed Toni Kane to buy, Mr Kennedy essentially concluded that the claimant had asked her to buy drink only. This then meant that under 18s had no option but to take alcohol as their share of the party funds. Mr Kennedy was satisfied that the claimant had knowingly chosen to breach company procedures regarding the New Year's party in a number of respects. He also concluded that the claimant had deliberately spent more money than he was entitled to spend, and he had allowed alcohol to be purchased for minors. Mr Kennedy therefore determined that the claimant should be summarily dismissed. There was no mention in this document or the dismissal letter of the claimant's length of service or his clean disciplinary record or any other mitigation.

 

34. The outcome of the disciplinary hearing was confirmed to the claimant by letter dated 13 April 2016. The reasoning set out in this letter was substantially the same as the document referred to above.

 

35. The claimant appealed against his dismissal. The grounds of that appeal were lack of evidence, that the company had not conducted a full and fair investigation and disciplinary hearing, discrimination by the Regional Manager conducting the hearing and issues relating to the claimant's salary for March 2016 which the claimant believed were relevant. The claimant asked for all written documentation and evidence held by the respondent prior to the appeal.

 

36. Following the dismissal of the claimant, Claire Lewsley gave a written statement to the claimant. A written statement was also provided by Jennifer McDonnell who had been asked by Mr Kennedy to take notes during his interview with Claire Lewsley. Mr Kennedy had not given any indication to the claimant that he had interviewed Claire Lewsley.

 

37. The claimant's appeal was heard by Sharon Lamb, the respondent's Divisional Manager. In advance of the appeal hearing, Mrs Lamb was provided with the documents which had been used by Mr Kennedy in reaching his decision together with the notes of the disciplinary hearings and the document recording Mr Kennedy's decision.

 

38. The appeal hearing took place on 27 April 2016. The claimant maintained that he had not seen the terms and conditions relating to the New Year's party. He also maintained that he had not asked Toni Kane to buy just alcohol, however he did admit to an "element of negligence" in relation to potentially making alcohol available to minors.

 

39. The claimant produced the written statements which he had been given by Claire Lewsley and Jennifer McDonnell and raised a concern that the statement which Mr Kennedy had taken from Claire Lewsley and that obtained from Michael Haveron were withheld from him. The claimant maintained that these statements supported his version of events, that is that he had asked Toni Kane to buy other things as well as alcohol.

 

40. At the appeal hearing, the claimant referred to his March pay being incomplete and he suggested that this was due to an instruction given by Mr Kennedy and he felt this showed that the decision was pre-judged.

 

41. The claimant also alleged that Mr Kennedy was prejudiced against him due to the claimant's sexual orientation. He gave some examples of instances which he regarded as unfair treatment of him by Mr Kennedy.

 

42. Following the appeal hearing, Mrs Lamb made or directed some further investigations. This included an interview with Mr Kennedy. Mrs Lamb asked Mr Kennedy who he had interviewed. He confirmed that he had interviewed Claire Lewsley. He told Mrs Lamb that he believed her evidence took the matter no further one way or the other. She also put to Mr Kennedy the allegations that he had treated the claimant differently because of his sexual orientation. Mrs Lamb's evidence was that Mr Kennedy gave her straightforward explanations which she believed, although she did not expand in her evidence to the tribunal on what those explanations were.

 

43. Mrs Lamb also asked an HR officer to undertake various enquiries including speaking to witnesses to the alleged incidents between the claimant and Mr Kennedy. Mrs Lamb considered that the evidence of these witnesses did not support the claimant's allegations.

 

44. Mrs Lamb decided not to re-convene the appeal hearing to allow the claimant to consider and to comment on the evidence obtained during the further investigations conducted by Mrs Lamb or on her directions.

 

45. Mrs Lamb's decision to uphold the dismissal of the claimant was confirmed by letter dated 23 May 2016. She concluded that the claimant had lied throughout the disciplinary process about his lack of knowledge of the terms and conditions. Mrs Lamb also considered that the claimant had made what she regarded as malicious allegations about Mr Kennedy being homophobic towards the claimant. Whilst the claimant had provided some additional evidence regarding what he had asked Toni Kane to buy, Mrs Lamb felt this was not a key factor in her decision. (In fact, this evidence, namely the statement of Claire Lewsley had been in the possession of the respondent since before Mr Kennedy's decision having been obtained but discounted by him). Mrs Lamb's view was that the claimant knew that Toni Kane had bought nothing but alcohol, but had done nothing about which she felt he could have done had he been concerned. The claimant had also done nothing to ensure that under 18s did not take alcohol.

 

 

 

 

Statement of Law

 

Statutory Dismissal Procedure

 

46.          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.

 

47.          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.

 

48.          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

49.          Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for the dismissal. Further, the employer must show that the reason shown by it is a reason falling within para (2). A reason falls within para (2) if it relates to the conduct of the employee.

 

50.        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".

 

51. The leading cases in relation to conduct dismissals are 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. In his judgment in that case, the Lord Chief Justice refers to the case of Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where Browne-Wilkinson J said 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.'

 

52. 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. 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 circumstance be a reasonable conclusion."

 

53. 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.

 

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".

 

54. In the case of Salford Royal NHS Foundation Trust v Roldan 2010 IRLR 721, the Court of Appeal in England and Wales held that it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where the employee's reputation or ability to work in his or her chose field of employment is potentially apposite.

 

55.          In the case of Sainsbury's Supermarkets Ltd  v Hitt [2003] IRLR 23, it was held by the Court of Appeal in England and Wales that the "band of reasonable responses" test does not simply apply to whether the sanction of dismissal was permissible. It bears on all aspects of the dismissal process, including whether the pre-dismissal investigation was fair and appropriate.

 

56.          The band of reasonable responses was also considered by the Court of Appeal of England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677 where Bean LJ stated:

 

"" The band of reasonable responses" has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss "in accordance with equity and the substantial merits of the case". This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal's consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer". (para 61 of the judgment).

 

57.          As regards the impact of misconduct on the employment relationship, in the case of Neary v Dean of Westminster 1999 IRLR 288, it was held that whether particular misconduct justifies summary dismissal is a question of fact. The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-à-vis the employer must all be considered in determining the extent of the duty of trust and the seriousness of any breach thereof.

Compensation

 

58.          In this case, the claimant had obtained alternative employment before the hearing and for this reason, he did not seek either reinstatement or re-engagement. Therefore, in the event that the tribunal found that the claimant had been unfairly dismissed, it was agreed that the appropriate remedy would be compensation.

 

59.          Where compensation is ordered in respect of unfair dismissal, such compensation must be calculated in accordance with the principles set out in the Order. In this case, the figures in respect of both the basic award and compensatory award were agreed between the parties.

 

60.          By article 156 (2) of the Order, " where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

 

61.          By article 157(6) of the Order, " where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

 

62.          In the case of Nelson v BBC (No.2) [1979] IRLR 346 (CA), it was held that three factors must be present for a reduction of the compensatory award for contributory fault:

 

• The claimant's conduct must be culpable or blameworthy.

 

• It must have actually caused or contributed to the dismissal.

 

• The reduction must be just and equitable.

 

63.          In addition to the cases referred to specifically above, the tribunal took into account cases referred to by counsel for both parties in their helpful submissions and also considered relevant sections of the Labour Relations Agency Code of Practice on Disciplinary Procedures.

 

Conclusions

 

64.          The tribunal considered firstly whether the statutory dismissal procedure had been complied with in this case. The claimant's counsel did not contend that there had been any breach of the statutory procedure. Based on the facts found by it, the tribunal had little hesitation in concluding that all the steps of the statutory procedure had been complied with in this case.

 

65.          The tribunal then proceeded to consider whether the dismissal was fair in accordance with general principles. Firstly, the tribunal considered whether the respondent had shown the reason for dismissal. The respondent contended that the claimant was dismissed by reason of his conduct in relation to the New Year party. At the hearing, it was not seriously suggested on the claimant's behalf that the reason for his dismissal was anything other than the claimant's conduct, albeit there was some suggestion in the evidence that there was a difficult working relationship between the claimant and Mr Kennedy who took the initial decision to dismiss the claimant.

 

66.          Having considered carefully the evidence of the decision-makers in relation to the reason for his dismissal along with the claimant's own evidence, the tribunal was satisfied that the respondent had shown that the claimant's conduct was the reason for dismissal. The conduct of the employee is a potentially fair reason for dismissal under article 130(2) of the Order.

 

67.          The tribunal then had to determine whether the dismissal was fair or unfair in all the circumstances in accordance with article 130(4) of the Order. The tribunal followed the steps outlined in the Rogan case. We reminded ourselves, in particular, that we must not substitute our own view for that of the employer.

 

68.          The tribunal began by considering whether the employer in this case had established its belief in the particular misconduct. The tribunal had the opportunity to assess the evidence of the decision-makers Mr Kennedy and Mrs Lamb during the hearing. The tribunal was satisfied that both decision-makers had formed a genuine belief that the claimant was guilty of misconduct related to the New Year party. Following the appeal hearing, Mrs Lamb concluded that the claimant had taken no steps to ensure that under 18s did not take alcohol. She further concluded that the claimant had been aware of the terms and conditions relating to the New Year party and that he failed to follow them. This led to the claimant claiming £11.41 of the £15 allowance for an employee who had left the respondent at an earlier date.

 

69.          The next issue for the tribunal to determine was whether the decision-makers, in particular Mrs Lamb who heard the appeal, had reasonable grounds on which to sustain this belief. In this regard, the tribunal was mindful of the guidance given by the Court of Appeal in the Rogan case that " the judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal". On balance, the tribunal considered that there was a reasonable basis for Mrs Lamb's belief that the claimant was guilty of some degree of misconduct relating to the New Year party. The claimant himself had accepted that he was guilty of neglect in relation to alcohol potentially being made available to minors.

 

70.          The tribunal then had to consider whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances. In this regard, the tribunal was mindful of the cautionary note in the Salford case that it is particularly important that employers take seriously their responsibilities to carry out a fair investigation where the employee's future ability to pursue their career was at stake, which was potentially the case here, particularly as the terms "fraudulent" and "illegal" were used by the respondent in connection with the disciplinary charges.

 

71.          In this case, much of the investigation was carried out by the decision-makers, namely Mr Kennedy and Mrs Lamb after the claimant had been invited to a disciplinary hearing. Mr Kennedy interviewed further witnesses after the initial hearing, but then decided not to share the evidence obtained from some of those witnesses with the claimant so that he could challenge or comment on that evidence or make submissions. Mr Kennedy sought to explain this decision on the basis that he did not believe this evidence took the case any further and it was not relevant to his decision-making.

 

72.          Similarly, at the appeal stage, Mrs Lamb carried out various further investigations and enquiries, but did not allow the claimant to challenge or comment on the outcome of those investigations or to make submissions. Overall, the tribunal considers that this failure to make this evidence available to the claimant caused significant unfairness to him and that the investigation carried out by the respondent therefore fell short of what was reasonable in the circumstances.

 

73.          The tribunal is not satisfied overall that the amount of investigation carried out by the respondent in relation to these matters was reasonable in all the circumstances.

 

74.          The tribunal then had to consider whether the misconduct which the respondent found proven against the claimant was sufficient grounds for his dismissal. Essentially, the claimant was found guilty of submitting an inappropriate claim for £11.41 in respect of the New Year party and failing to take steps to ensure that alcohol was not made available to minors. As outlined above, the test is usually expressed as being whether dismissal fell within the band of reasonable responses of a reasonable employer. The evidence of the decision-makers in relation to sanction was that, given the claimant's position as Store Manager, this was considered to be a serious matter and the tribunal fully understood this point.

 

75. The tribunal reminded itself that it must be careful not to substitute its own view for that of the employer. However, it is clear from recent caselaw such as the case of Newbound that it is open to the tribunal, where appropriate, to find that dismissal was unfair in light of the substantive merits of the case. The tribunal was also mindful of the general principle set out in the Labour Relations Agency Code of Practice that employers should " Use procedures primarily to help and encourage employees to improve/modify behaviour rather than just as a way of imposing a punishment ."

 

76.          In this case, the misconduct found against the claimant was essentially that he had wrongly claimed the sum of £11.41 which was used for the benefit of the staff of the store and that he had failed to take steps to ensure that alcohol was not made available to minors. There was no suggestion that the claimant himself had personally benefited nor that he had sought to hide any of his actions. Indeed, he had submitted all the relevant documents to Mr Kennedy his Regional Manager. The claimant accepted that he was guilty of a degree of neglect in relation to the alcohol. There was little in the evidence before the tribunal to suggest that the respondent had taken appropriate account of these factors or the claimant's long service with the respondent and the related company together with his previously clean disciplinary record.

77. Having carefully weighed all the relevant facts, the tribunal ultimately concluded that summary dismissal for a first offence in the circumstance of this case fell outside of the band of reasonable responses of a reasonable employer.

 

78. In summary, the tribunal has concluded that the dismissal of the claimant was unfair in all the circumstances and the claimant's claim of unfair dismissal is therefore upheld.

Compensation

79.          The basic award in this case was agreed as the sum of £1067.31. The tribunal considered that the claimant's conduct, including his admitted neglect had contributed to some extent to his dismissal. The tribunal assessed the extent of this contribution to be very low, that is 10%.

80. Therefore, the calculation in respect of the basic award is as follows:-

 

Basic award (agreed figure) £1067.31

Less contributory fault (10%) - £ 106.73

£ 960.58

 

81.          The compensatory award in this case was also agreed as the sum of £1067.31. The tribunal considered that the claimant's conduct, including his admitted neglect had contributed to some extent to his dismissal. The tribunal assessed the extent of this contribution to be very low, that is 10%.

82.          Therefore, the calculation in respect of the compensatory award is as follows:-

Compensatory award (agreed figure) £1067.31

Less contributory fault (10%) - £ 106.73

£ 960.58

 

83.          Total of basic and compensatory award = £1921.16

 

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 17 November 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: