Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2124/16

 

 

 

CLAIMANT: Paula Wilson

 

 

RESPONDENT: Rascals Day Nurseries

 

 

 

DECISION

The decision of the tribunal by a majority is that the claimant was not unfairly dismissed and her claim to this tribunal is therefore dismissed.

 

Constitution of Tribunal:

 

Employment Judge Murray

Mr A Huston

Mr D Walls

 

 

Appearances:

The claimant was represented by Mr G Duggan, a friend.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Mr A Brett of Jones Cassidy Brett Solicitors.

 

THE CLAIM

 

1. The claimant claimed unfair dismissal. The respondent's case was that the claimant was fairly dismissed for gross misconduct.

 

THE ISSUES

 

2. The issues for the tribunal were as follows:

 

(1) Whether the respondent, in the form of the managers who took relevant decisions, believed that the claimant was guilty of misconduct based on reasonable grounds following a reasonable investigation;

 

(2) Whether the actions and decisions of the respondent in relation to the process and the penalty was within the band of reasonable responses for a reasonable employer in the circumstances;

 

(3) Whether there was inconsistency of treatment between the claimant and Ms Brown;

 

(4) If there were procedural defects, whether the claimant would have been dismissed in any event and in those circumstances whether a deduction should be applied to any award of compensation;

 

(5) If the claimant was unfairly dismissed, whether any compensation should be reduced for contributory conduct.

 

SOURCES OF EVIDENCE

 

3. For the respondent the tribunal had witness statements from; Lynne Scott, the Manager involved in the investigation; Shirley Neill Area Manager who took the decision to dismiss; Roger D'Arcy, Managing Director of the respondent company who dealt with the appeal. For the claimant, the tribunal heard from the claimant on her own behalf.

 

4. The tribunal had regard to the witness statements, the oral evidence and the documentation to which it was referred. A statement was in the bundle from the claimant's mother, Angela Wilson, but the claimant did not call her to give evidence. At the outset of the hearing Mr Duggan applied for evidence to be heard from a former employee of the respondent, Janine Shaw who was present at the relevant altercation. Ms Shaw's evidence was not brought forward by either the respondent or the claimant during the disciplinary and appeal processes. For this reason, and in line with the guidance in the Rogan case, the Employment Judge refused the application to have a witness statement and oral evidence admitted from Ms Shaw.

 

THE LAW

 

U nfair Dismissal

 

5. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as "the Order"). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

 

6. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd 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 grounds of misconduct in question ... 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. 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".

 

7. The Northern Ireland Court of Appeal decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 outlines the task for the tribunal in a misconduct dismissal case. The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer's act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.

 

8. An employer should not adopt a rigid approach to penalty in misconduct cases but should look at all the circumstances. (Taylor v Parsons Peebles NEI Bruce Peebles Ltd [1981] IRLR 119).

 

9. Harvey on Industrial Relations and Employment Law at Paragraph 1035-1043 deals with consistency of treatment of employees charged with comparable offences.

 

10. Harvey notes cites in detail the decision of the Court of Appeal in the case of Paul -v- East Surrey District Health Authority 1995 IRLR 305 which approved the comments made in the EAT decision of Hadjioannou -v- Coral Casinos Limited 1991 IRLR 352. In Hadjioannou the EAT warned Tribunals against adopting a 'tariff' approach and stated that it was of the highest importance that flexibility should be retained when an employer has to deal with industrial misconduct. The following extract is of direct relevance to this case:

 

"An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, ...".

 

11. In the case of Securicor Ltd v Smyth [1989] IRLR 356 the test applied by the Court of Appeal is summarised in the head note as follows:-

 

"The question for the Industrial Tribunal was whether or not the employers acted reasonably and within the band of reasonable responses in acting upon the findings and conclusions of the appeal panel. Therefore, where two employees are dismissed for the same incident and one is successful on appeal but the other is not, in determining the fairness of the latter's dismissal the question is whether the appeal panel's decision was so irrational that no employer could reasonably have accepted it."

12. At paragraph 1042 of Harvey it states:

 

"if an employer consciously distinguishes between two cases the dismissal can be successfully challenged only if there is no rational basis for the distinction made" (emphasis added).

 

FINDINGS OF FACT AND CONCLUSIONS

 

13. The tribunal considered all of the evidence, both oral and documentary and found the following primary facts proved on a balance of probabilities. This decision does not record all the competing evidence but records the primary findings of fact drawn from all the evidence. The tribunal applied the legal principles to the facts found in order to reach the following conclusions.

 

14. The claimant was employed as a nursery assistant from 26 April 2006 until 29 June 2016 when she was sacked for gross misconduct. At the time of dismissal the claimant was based at the Circular Road nursery along with Ms Brown who was senior to her as Unit Head.

 

15. The respondent is a company with approximately 200 employees and has eight nurseries in different bases in Northern Ireland.

 

Altercation 5 June 2016

16. The incident which ultimately led to the claimant's dismissal occurred at 3.00 am on the morning of Sunday 5 June 2016.

 

17. The claimant and a colleague from the respondent company, RN, together with a former employee, Janine Shaw and RN's boyfriend had been out for the night and had gone to a friend of the claimant's whose dwelling was close to Ms Brown's.

 

18. The tribunal finds unanimously the following facts (and it was also common case) that:

 

(i) There was rowdiness by this group in the vicinity of Ms Brown's house;

 

(ii) The claimant pointed out Ms Brown's house to the group, saying it was Ms Brown's;

 

(iii) RN's boyfriend caused some damage to potted plants outside Ms Brown's house;

 

(iv) Ms Brown then came out of her house and there ensued a confrontation with the claimant, during which the claimant said to Ms Brown: " You're a tout - you touted on me about the Jaime thing" (referred to in this decision as 'the tout comment');

 

(v) The tout comment referred to an incident in work on 21 May 2016 between the claimant and Ms Brown.

 

 

19. Later that same evening there ensued an altercation involving several other individuals and there was a dispute in this case as to who was the aggressor in an alleged assault involving Ms Brown and the claimant. The claimant called the PSNI and ultimately no action was taken by the PSNI as a result of the incident.

 

20. Whilst reasons were given by the claimant's side for the PSNI matter not going any further, we unanimously find that those reasons were irrelevant to the issues before the tribunal.

 

21. Ms Brown related the tout comment to an incident in work on 21 May 2016, (set out at paragraph 26 onwards below) and told her employer that the tout comment caused her to feel victimised and afraid. We unanimously accept that this was a reasonable reaction by Ms Brown.

Informal meeting 6 June 2016

 

22. Both the claimant and Ms Brown separately contacted their line manager Ms Scott on the Monday morning i.e. 6 June 2016. Ms Scott, realising this was a serious matter, called in her line manager, Shirley Neill and there then followed two separate informal meetings with Ms Brown and the claimant for the managers to listen to what each worker wanted to say.

 

23. Ms Brown asked in advance for permission to bring her mother along and this was granted. The claimant did not at any point ask for her mother to attend and made the point in tribunal that the respondent had treated her unfairly by not suggesting to her to have her mother attend. We unanimously reject the claimant's point that this amounted to any unfairness and that it tainted the subsequent process.

 

24. The managers assessed Ms Brown as being scared and fearful of working with the claimant to the extent that she asked to move to the Stormont branch, even though this would have meant her moving as a nursery assistant (a lower level role) rather than a Unit Head. The reason Ms Brown said that she felt victimised and was afraid was because that she related the tout comment to a previous incident with the claimant when the claimant used threatening words to her. That incident had occurred in work on 21 May 2016 i.e. less than two weeks beforehand.

 

25. When the claimant came in for the meeting on 6 June 2016 (which she had requested), she had a sick line with her, having been at her doctor that morning and she proceeded to give details of the incident the previous day. We unanimously reject the claimant's contention that it was somehow unfair and/or tainted the subsequent investigation and disciplinary process that Ms Neill asked questions about the altercation during that meeting, rather than stopping it immediately the sick line was produced. We unanimously accept as reasonable Ms Neill's assessment that it was the claimant who asked for the meeting and that it was clear that she wanted to give her side of the story.

 

26. The conversation was recorded covertly by the claimant. In this regard, the claimant's side specifically relied on the transcript in the tribunal hearing and specifically stated that the tribunal did not need to listen to the recording in the course of the hearing. Having studied the transcript we unanimously find no unfairness in the conduct of that meeting by Ms Neill.

 

27. We unanimously find that it was irrelevant to these proceedings that the respondent did not have in place a policy of recording all meetings. It was common case that notes of later meetings were not verbatim and no material discrepancy in the notes was referred to in tribunal.

 

28. We unanimously find that managers validly invoked the disciplinary procedures against the claimant in relation to the tout comment, as there was a clear link to the previous behaviour in May.

 

Incident 21 May 2016

 

29. The claimant had received a "line in the sand" letter on 24 May 2016 and this related to an incident on 21 May 2016. The claimant had agreed that on that occasion she had said to Ms Brown: "If I find out you're lying I'll punch your face - I'll hold you to that", because Ms Brown would not give her certain information about a colleague.

 

30. The majority finding is that the respondent sent the line in the sand letter as a record of a manager talking to the claimant about her conduct without invoking disciplinary procedures and as a record of a reminder to the claimant of the relevant policies. The majority does not find this to be unfair. The minority finding is that this was a step in the disciplinary process as it was later referred to in the disciplinary and appeal processes and that this was unfair.

 

31. The claimant was required to sign the line in the sand letter as acknowledgement and acceptance of its contents and she did so. That letter stated where relevant as follows:

"24 ^th May 2016

 

Dear Paula,

 

Re: Incident in Circular Road branch on Thursday 21 ^st May 2016

 

I am writing to confirm the outcome of our meeting, which took place in Circular Road branch on Tuesday 24 ^th May 2016.

 

At the meeting we discussed an allegation that you pestered a colleague (a Unit Head) for information regarding another staff member and when your colleague refused to discuss the matter you used bullying, offensive and threatening behaviour towards her by threatening to assault her - you said to her, "If I find out you're lying I'll punch your face - I'll hold you to that."

 

...

 

You threatened to harm a colleague, causing her to feel uncomfortable. You showed a lack of respect towards another staff member which could result in poor teamwork by using intimidating and offensive language towards her.

 

Whilst I believe that your threat to harm your colleague was an "off the cuff" remark and I believe that you did not intend to carry out your threat to physically harm her, this behaviour is unacceptable. I write to confirm that on this occasion, the Company will not be initiating formal disciplinary action in respect of your actions but restate the absolute unacceptability of your conduct.

 

 

You should be aware that no further similar breaches of the Company's rules will be tolerated. Any future non-compliance with the Company's rules and procedures will be addressed using the formal Disciplinary Procedure".

 

32. At that time managers also reminded the claimant in detail in the letter of the Positive Working Environment Policy provisions some of which were set out in the letter.

 

Verbal warning

 

33. The claimant had in 2014 received a verbal warning in relation to breach of the Positive Working Environment Policy. That warning had lapsed but was alluded to in the dismissal letter because at that time the Positive Working Environment Policy was "refreshed" with the claimant. The respondent's point in tribunal was that it was therefore not the case that she was unfamiliar with that policy as the claimant had also been reminded of it in the line in the sand letter.

 

34. The majority finding is that we accept the respondent's managers' evidence that the verbal warning was not "revived" and held against the claimant. We find that the existence of the verbal warning meant that this was not an employee with a clear record and to that extent it was relevant to the respondent. The fact that the verbal warning had lapsed did not mean that the claimant had a clear record. The minority finding is that this was wrongly held against the claimant.

 

Investigation

 

35. An investigation then took place into the events of 5 June 2016. Ms Scott and Ms Neill worked on the investigation and this involved having separate minuted meetings with the claimant, Ms Brown, and Ms Neill. We unanimously find no fault with the investigation. Ms Neill was not involved in the claimant's interview as there was then a recognition that she should be reserved for any disciplinary process and we unanimously find that this was not a defect in procedure.

 

Disciplinary

36. Ms Neill, the Area Manager conducted the disciplinary hearing. As Area Manager all the nursery managers reported to her and she, in turn, reported to the two Managing Directors.

 

37. The three charges were set out in the letter of invitation to the disciplinary hearing dated 28 June 2016:

 

"An incident occurred in the early hours of Sunday 5 ^th June 2016 where you were outside the work colleague's home and caused her to be harassed by your actions and behaviour including;

 

•         Intimidating behaviour, arriving at her house with others, contributing to damage of her property.

 

•            Name calling - "You're a tout - you touted on me over Jaime", or words to that effect, which relates back to a prior workplace incident (see below). This is offensive behaviour and amounts to victimisation. It was felt by your work colleague to be a direct link to your previous threats.

 

•            The impact of your behaviour, which was threatening, has caused her to feel terrified and consequently unable to work in the same building as you."

 

38. A disciplinary hearing took place on 29 June 2016. Prior to that hearing, the claimant was given a copy of the notes of her own investigatory meeting but was not given the notes of the investigatory meetings relating to RN and Ms Brown. The claimant made the point that she was "boxing blind" because she did not have those two statements.

 

39. Whilst RN made it clear that she was present at the beginning of the incident but she did not witness the encounter between the claimant and Ms Brown, and whilst the claimant admitted key components of the conduct which was reasonably linked by everyone including the claimant to the previous incident in work in May, we unanimously find that the fact that their statements were not shown to the claimant was a defect in procedure. We also find however that it made no difference to the outcome and that that flaw was cured on appeal.

 

40. We are unanimously satisfied that the claimant had a full chance to put her case and to answer the case against her.

 

41. An outcome letter was sent on 1 July 2016 following the meeting on 29 June 2016 as the claimant was verbally told at that meeting that she was being sacked for gross misconduct.

 

42. The dismissal letter of 1 July 2016 ran to almost three typed pages. The following extract outlines Ms Neill's consideration of relevant factors and the majority finds that her conclusions and reasoning are within the band of reasonable responses for a reasonable employer:

 

"After the hearing I considered all the facts available to me, and after the subsequent adjournment, I gave my decision on Wednesday 29 ^th June 2016, which is as follows:

 

-        In regard to the 1 ^st point (arriving at her house, contributing to damage) I accept that you cannot be held respondent for the damage caused by others and you have stated that you were visiting a friend's house in the vicinity, so that allegation is waived.

 

-        You have admitted to saying to Jenny that evening "Sure you've went and touted on me over the Jaime thing" or words to that effect. I am satisfied that your name calling, which relates back to a prior workplace incident, was offensive behaviour and amounted to victimisation. It was felt by your work colleague to be a direct link to your previous threats.

 

-        I am satisfied that the impact of your behaviour - your presence outside her house in the early hours of Sunday 5 ^th June 2016 - in the context of the previous workplace incident was threatening, and has caused her to feel terrified and consequently unable to work in the same building as you.

 

-        You have failed to show any remorse or to apologise for your actions.

 

-        You have failed to provide any mitigating factors.

 

-        I have taken into consideration your failure on 2 prior occasions to comply with the Company Positive Work Environment Policy and the resulting action taken, as follows:

 

on 26 ^th May 2016 a Line in the Sand was issued.

on 29 ^th April 2014 a Verbal Warning was issued.

 

It is acknowledged that the Verbal Warning has lapsed. However it is the on-going requirement to comply with Company Policies and particularly in the context that you were specifically refreshed on this Policy and signed off to this effect, is the critical point".

 

43. Ms Neill did not uphold the first of the three charges because she accepted that the claimant was not involved in damaging property. She did however uphold the other two charges and regarded them as gross misconduct, warranting dismissal, given that the claimant had very recently received a line in the sand letter and was also familiar with the relevant policy.

 

44. Following an assessment of her evidence and reasoning, the majority accepts that she carefully weighed up all relevant factors and fairly concluded that the claimant's tout comment amounted to victimisation of Ms Brown. She also reasonably took account of the claimant's lack of insight into her behaviour and her lack of contrition, apology or remorse. She considered a lesser penalty and rejected it for valid reasons. It is the majority view that the decision to dismiss was within the band of reasonable responses for a reasonable employer. Ms Neill was faced with two employees who gave conflicting accounts on some points. For example, Ms Brown stated that the claimant shouted a tout comment at her house before Ms Brown went out into the street. Ms Brown's account therefore was that the claimant came out with the tout comment unprovoked. The claimant's account was that Ms Brown came out of her house and attacked the claimant and that this led to the tout comment. The majority finds that Ms Neill's conclusion on weighing up that evidence with all the other evidence in the context of the claimant's unacceptable comment two weeks before, was within the band of reasonable responses for a reasonable employer.

 

Appeal

 

45. The claimant appealed and the appeal hearing took place on 24 August 2016 before Mr D'Arcy, Managing Director. Before that hearing the claimant was given the statements of Ms Brown and RN and we unanimously find that this cured the defect and she had a full opportunity to put forward her side of the case with the help of her work colleague.

 

46. Mr D'Arcy considered all the information and dismissed the appeal with an outcome letter being sent on 30 August 2016. The flaw in earlier procedure whereby the claimant did not have sight of RN's and Ms Brown's statement during the disciplinary hearing, was 'cured' on appeal. In the event we unanimously find that no points were made by the claimant based on that statement that were material or relevant either at the internal appeal or before this tribunal.

 

47. The following are extracts from the appeal outcome letter:

 

(1) "You state that you believe you have no reason to apologise for "telling the truth". I am shocked and saddened that you believe that you can:

 

•                 call a colleague a "tout" for reporting an incident in work.

•                 threaten them by saying "If I find out you're lying I'll punch your face - I'll hold you to that" then follow this through by appearing at your colleague's house in the middle of the night and linking your presence there with the previous incident in work by saying "Sure you've went and touted on me over the Jaime thing" (or words to that effect)."

 

(2) "I advise that lines in the sand do not form part of the formal disciplinary procedure so as such do not "lapse". They record informal warnings to staff to bring matters of concern to their attention. I quote from your line in the sand:

 

"I write to confirm that on this occasion, the Company will not be initiating formal disciplinary action in respect of your actions but restate the absolute unacceptability of your conduct. You should be aware that no further similar breaches of the Company's rules will be tolerated. Any future non-compliance with the Company's rules and procedures will be addressed using the formal Disciplinary Procedure."

 

(3)           "I accept that there was an altercation between the two of you and I have no doubt that colourful language was used by both parties. However, the key issue was what you said to Jenny in the context of the prior incident and the impact of your behaviour at the time. (your presence outside her house in the early hours of Sunday 5 ^th June 2016)."

(4)           "[The line in the sand letter] was issued as a consequence of your behaviour and your Manager believed that your behaviour warranted reprimand, a step short of disciplinary action. All lines in the sand are recorded as a letter.

 

You query why you were reminded of the consequences of the line in the sand. It is Company policy to state in all lines in the sand what further consequences may be so staff are clear of the consequences of re-offending. However, it was referred to in the Disciplinary Hearing Outcome Letter because the incident was both recent and its consequences appeared to be a follow-on incident."

 

(5)           "I have reviewed and am satisfied that it was due to your continued failure to comply with Rascals Positive Work Environment Policy, the link in your actions to the previous threat to Jenny and the impact that had. Within 11 days of your line in the sand, you were involved in the incident at Jenny's house with a clear connection to the previous incident at work, despite having been reminded of Rascals Positive Work Environment Policy."

 

48. The factors taken into account by Mr D'Arcy, in particular were, that it was the claimant who was with others creating the disturbance outside Ms Brown's home. The majority finds that it was a valid consideration for the respondent to take account of the fact that it was Ms Brown who was woken from her sleep in the middle of the night by an altercation outside involving a work colleague who then made reference during an altercation to her having "touted" on her.

 

49. The majority finds that Mr D'Arcy carefully considered the matter and his decision was within the band of reasonable responses for a reasonable employer in the circumstances.

 

Consistency Point

 

50. We unanimously reject the claimant's case that she was treated differently from Ms Brown in similar circumstances and that this meant that her dismissal was unfair. In line with the principles elucidated in the Court of Appeal decision of Securicor Ltd v Smyth, the tribunal must look at whether or not the distinction between the two workers had no rational basis. As stated in the head note of that case:

 

" In determining the fairness of the latter's dismissal the question is whether the appeal panel's decision was so irrational that no employer could reasonably have accepted it. ...

 

Although it would have been open to the appeal panel to reach a different conclusion, they did not do so for rational and clear reasons".

 

51. We therefore unanimously reject the claimant's case that the fact that Ms Brown was not disciplined meant that the decision to dismiss the claimant was unfair.

 

52. The claimant appeared to make the case that there was inconsistency and/or unfairness in the fact that early in the process there was a proposal that she move temporarily to another nursery whereas no such proposal was made to Ms Brown. We unanimously reject that point as we accept the reasons given by the respondent for this proposal which related to the ease of moving a nursery assistant as opposed to a Unit Head. It was also no more than a proposal as it transpired that claimant remained off sick.

 

53. We unanimously find that there therefore was a valid and rational reason for the distinction made between the two workers primarily based on the reasonably held view that firstly, Ms Brown did not instigate the incident which led to the tout comment and secondly, she was reasonably regarded as the victim in the previous incident in May, which incident was reasonably linked to the tout comment.

 

Conclusions of the minority

 

54. The minority finds that the decision to impose a disciplinary penalty on the claimant was outside the band of reasonable responses for a reasonable employer in the following circumstances:

 

(1)   The tout comment was made in the heat of the moment.

 

(2)           Whilst the assault issue was left to the PSNI, the employer should have taken the context into account, namely that there were accusations on both sides of bad language and violence was alleged by each side.

 

(3)           If the context had been sufficiently taken into account there was a chance that the employer would not have found the claimant guilty of any disciplinary offence at all.

 

55. On appeal, insufficient attention was paid by Mr D'Arcy to the context of the sequence of events namely that the words were spoken in the heat of the moment, the incident took place out of the workplace, there was insufficient attention given to the claimant's account that she did not start the altercation and her account that it was the altercation which led to the heated words.

 

56. Whilst use of the word "tout" linked the matter to the previous workplace incident, the employer should have had regard to the conflicting reports and should have decided not to impose a penalty at all. It would have been a simple matter for this employer to separate both women by moving them.

 

57. The employer placed reliance on the line in the sand letter and this amounted to using it as part of the disciplinary process. The minority member rejects the respondent's account that reference to the line in the sand letter was in relation to emphasising that the claimant was made aware of relevant policies and that it was not of itself taken into account in deciding the disciplinary penalty.

 

58. The verbal warning from 2014 was unreasonably taken into account in deciding the penalty and this was wrong as the warning had lapsed. This was an employee of 10 years standing with one lapsed verbal warning. The tout comment and its connection with the comment in the workplace did not of itself amount to gross misconduct. If it amounted to misconduct at all the penalty should have been one which was short of dismissal. The claimant could have been moved as a sanction. The two women clearly did not get on and the employer could have taken steps to separate them by moving them.

 

Summary decision

 

59. Our unanimous finding is that it was reasonable for the managers to regard as valid Ms Brown's reaction of feeling victimised, given that it was the claimant who made the tout comment and Ms Brown reasonably made the link to the May incident which had led to a line in the sand letter.

 

60. The employer in the form of Ms Neill, the manager who dealt with the disciplinary and Mr D'Arcy, the Director who dealt with the appeal had before them two conflicting accounts. It was open to them on the evidence before them to find that the claimant was blameworthy given her admission of key points and the admitted connection between the tout comment and the previous comment in the workplace. Mr D'Arcy was entitled to take into account the factors which included the time of night and Ms Brown's fear which was accepted by the employer. Mr D'Arcy's outcome letter was 4½ typed pages and in the majority's view the content of that letter shows that he weighed up all relevant factors to reach a reasonable conclusion.

 

61. The respondent believed that the claimant was guilty of misconduct and had reasonable grounds upon which to sustain that belief following a reasonable investigation. The process and penalty were within the band of reasonable responses for a reasonable employer and specifically the claimant had a full chance to answer the case against her. The decision reached by the managers was reasonably open to them on the evidence before them. The procedure adopted complied with the statutory procedures.

 

62. We unanimously find that it was reasonable in this case for the respondent to regard the disciplinary process as separate to the PSNI process. We unanimously find it was reasonable for managers to leave to the PSNI the issue of the alleged assault, especially as that involved a number of people and it was outside the workplace. The matter which linked the early part of the altercation to the workplace, was the claimant's tout comment which was clearly linked to the previous incident in work where she had used threatening language to Ms Brown.

 

63. It was clear that recruitment of suitably qualified staff is a challenge in the nursery sector so this respondent did not dismiss the claimant lightly.

64. The majority finds that the actions of the employer were therefore within the band of reasonable responses for a reasonable employer in the circumstances and the dismissal was therefore not unfair. The claimant's claims are dismissed in their entirety.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 21 and 22 March 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: