Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1161/17

 

 

CLAIMANT: Jill Leeman

 

 

RESPONDENT: Southern Regional College

 

DECISION

The decision of the tribunal by majority is that the claimant was unfairly dismissed. The respondent is ordered to re-instate the claimant to her post on 19 February 2018. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant. The respondent shall pay the claimant £16,419.50 compensation. The claimant has not suffered a loss arising from a breach of contract.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Bell

 

Members: Mr I O'Hea

Mr D Walls

 

 

Appearances:

 

The claimant was represented by Mr S Martins of The Employment Law Service.

 

The respondent was represented by Mr Sean G Doherty, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

 

 

1.             The claimant complained in her claim that she was unfairly dismissed (substantively and procedurally) for alleged gross misconduct, that she had been discriminated against on grounds of disability and had suffered a loss arising from failure by the respondent in breach of contract to give her proper notice.

 

2.             The respondent resisted the claimant's claims and contended that it had fairly and dismissed the claimant and was entitled to dismiss her summarily.

 

3.             By a decision dated 5 April 2017, issued to the parties on 6 April 2017, that part of the claim relating to disability discrimination was dismissed following its withdrawal by the claimant.

 

4.             A witness order issued on the application of the claimant for the attendance of Clara Havern at the hearing was revoked on 12 September 2017 following confirmation at hearing that Ms Havern was no longer intended to be called as a witness.

 

5.             The following abbreviations used by the parties are adopted for the purpose of this decision:

 

AMH- Ann Marie Hughes

CH - Clara Havern

EN - Elaine Nesbitt

GD- Gerard Devlin

HBSS- Hairdressing Beauty and Sport Studies School

JL - Jill Leeman

OH - Occupational Health

SRC - Southern Regional College

SSP - Schools Partnership Programme

SSS - Sally Salon Services

TDs- Technical demonstrators

UCU - University & College Union

 

ISSUES

 

6.             The following issues were before the tribunal for determination:-

 

A.            Was the claimant unfairly dismissed by the respondent?

 

(i)         Has the respondent shown the reason for dismissal?

 

(ii)        Was it for a reason relating to the conduct of the claimant?

 

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

 

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

 

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

 

If so,

 

(vi)       What remedy is appropriate?

 

(vii)     Did the claimant by her conduct contribute to her dismissal such that a percentage reduction of any compensation should be applied?

 

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

 

(ix)       Has the claimant unreasonably failed to mitigate her loss?

 

B.            Has the claimant suffered a loss arising from a failure by the respondent in breach of contract to give proper notice?

 

 

 

EVIDENCE

 

7.             The tribunal considered the claim, response, agreed bundle of documentation (of 467 pages), witness statements for the respondent from Elaine Nesbitt (Head of School for curriculum areas including Beauty Therapy) who undertook the initial investigation, Gerard Devlin (Director of Curriculum) who made the first and second recommendations for dismissal, Ann Marie Hughes (Deputy Head of Human Resources and Development, until 31 March 2016, now Assistant Director of Human Resources and Development) who assisted Mr Devlin, and Brian Doran (Chief Executive and Accounting Officer) who suspended the claimant and sat on the sub-committee of the Governing Board which took the decision to dismiss; and for the claimant, witness statements from the claimant and Lynas Murray (Solicitor and Director in the firm of O'Reilly Stewart Solicitors, and partner of the claimant June 2015 - January 2016); together with witnesses' oral testimony.

FINDINGS OF FACT RELEVANT TO LIABILITY

8.             The claimant was employed by the respondent as a full time Lecturer in Beauty Therapy and was continuously employed from on or about 1 August 2005. The claimant had a period of previous employment of approximately four years from in or around 2000 as a part time lecturer for Upper Bann Institute at its Lurgan Campus which after a merger in 2007 became Southern Regional College. The claimant was at the top of the lecturer pay scale and in receipt of both Threshold and Deane payments.

 

9.             The respondent is a large employer with a number of campuses in the Southern region of Northern Ireland.

 

10.          In October 2008 the claimant's marriage broke up.

 

11.          Under the 'Lecturer's Contract 01 September 2009' the claimant was contracted to work Monday to Friday inclusive, for 36 hours, made up of student contact hours (subject to weekly maximums until reaching a total of 828 in the academic year) and associated duties as agreed by her line manager and set out in an agreed programme of work. The claimant normally had no required student contact time on a Monday or on a Friday afternoon and regularly taught evening classes between 6pm and 10pm on two evenings a week. As accepted by Mr Doran under cross examination it was possible that a lecturer could complete their contractual duties within four and a half days of the working week.

 

12.          At Paragraph 7.3 of the Lecturer's Contract the claimant was, during her working hours, required to undertake student contact and associated duties as directed by the College and to devote her full time, attention, and abilities to her duties and informed ' Accordingly, and without prejudice to your statutory rights, you must not, without the written consent of the Director/ Chief Executive, undertake any employment or engagement which might interfere with the performance of your duties or conflict with the interests of the College. Such permission will not be unreasonably withheld.' The claimant did not at any time seek written consent from Mr Doran under paragraph 7.3.

 

Provision was made for the Disciplinary Procedure for Teachers in Institutions of Further Education and Dismissal and Suspension Procedure for Full- Time Teachers in Institutions of Further Education to form part of the Lecturer's Contract and set out at paragraph 19.3 ' In appropriate circumstances where considered necessary you may be placed on precautionary suspension under either the Capability or the Discipline and Dismissal Procedures. For the avoidance of doubt, this is not a penalty under either Procedure.'

 

Under 'NOTICE OF TERMINATION OF EMPLOYMENT' paragraph 26.3 set out ' the College will give you 3 months' Notice in writing terminating at the end of a calendar month. The College may make a payment in lieu of notice.'

 

13.          The respondent's 'DISCIPLINARY PROCEDURE - LECTURING STAFF' provides at:

 

•                     2. 'DISCIPLINARY AUTHORITY

 

Disciplinary procedures should normally be invoked by the person next in line in the management structure of the college to the teacher involved but disciplinary interviews conducted as part of Stages 1,2,3 and 4 of the Formal Procedure should be heard by a person ( hereinafter referred to as the "disciplinary authority") senior to the person invoking the procedure.'

 

•                     3. 'GENERAL PRINCIPLES

 

3.1         Prior to taking any disciplinary action there shall be a preliminary investigation into any allegation of misconduct or indiscipline, to be carried out by the person who would be in that case be responsible for invoking the disciplinary procedure.'

 

3.2         'In the operation of the formal procedure the teacher shall:

 

i. be made fully aware of the circumstances giving rise to the possibility of disciplinary action being considered

 

ii.       be given a fair hearing at a disciplinary interview with the opportunity to state his case and produce witnesses ....'

 

•                      4. 'INFORMAL PROCEDURE

 

4.1 Every effort shall be made by those concerned with the college management at whatever level, to assist a teacher, whose conduct seems likely to lead to formal disciplinary action, to improve by means of counselling ...

 

4.3 Where it becomes necessary because of repeated misconduct or indiscipline or where the nature or seriousness of an act of misconduct or indiscipline is such that it would not be appropriate to deal with it in an informal way, the following formal procedure shall be used.'

 

•                     5. 'FORMAL PROCEDURE

 

The formal procedure shall consist of 4 stages, which shall normally be followed in sequence ...'

 

•                     9. 'FURTHER DISCIPLINARY ACTION (STAGE 4)

 

Stage 4 may be invoked:

 

(i)            If the offence for which a second written warning was given is repeated within a period not exceeding 104 weeks; OR

 

(ii)           If a similar or more serious offence occurs within that period; OR

 

(iii)          Where the seriousness of an act of indiscipline or misconduct merits the omissions of Stages 1, 2 and 3 ...

 

9.2         Where Stage 4 is invoked and a satisfactory explanation is not given the teacher may be subject to further disciplinary action, which may include suspension and dismissal in accordance with the provisions of the Dismissal and Suspension Procedure for Full-time Teachers in Institutes of Further Education .'

 

•                     10. 'EXPIRY OF WARNINGS

 

All records of warnings given by way of disciplinary sanction under the formal procedure shall be destroyed after a period not exceeding... Oral warning 18 weeks, First written warning 38 weeks, Second written warning 104 weeks.'

14.          The respondent's ' Anti-Fraud: Policy and Procedure', first issued in February 2008 and most recently in January 2013 sets out under:

 

•          1 POLICY STATEMENT

 

'The Southern Regional College requires all staff at all times to act honestly and with integrity and to safeguard the public resources for which they are responsible. Fraud is an ever present threat to these resources and hence must be a concern to members of staff.

 

The purpose of this statement is to set out individual responsibilities regarding:

 

§   Prevention of fraud.

§   Procedures to be followed where a fraud is detected or suspected.'

 

 

•          3 DEFINITIONS

 

'Fraud Fraud is when someone obtains financial advantage or causes loss by implicit or explicit deception. It is generally used to describe such acts as deception, bribery, forgery, extortion, corruption, theft, conspiracy, embezzlement, misappropriation, false representation, concealment of material facts and collusion.'

 

•          PROCEDURE FOR IMPLEMENTATION

'4.1 Chief Executive

 

The Chief Executive is the College Accounting Officer and is responsible for establishing and maintaining a sound system of internal controls that support the achievement of College Policies, aims and objectives. The system of internal control is designed to respond to and manage the whole range of risks that the College faces. The system of internal control is based on an on-going process designed to identify the principal risks, to evaluate the nature and extent of those risks and to manage them effectively. Managing fraud risk will be seen in the context of the management of this wider range of risks.

 

It is the responsibility of the Senior Management Team to support the Chief Executive in this regard by developing and maintaining effective controls to prevent fraud and to ensure that if it does occur it will be detected promptly.

 

If fraud occurs the College must:

 

§   Carry out a vigorous and prompt investigation which should consider as a matter of course whether there has been a failure of supervision.'

 

 

•          4.3 STAFF RESPONSIBILITIES

 

'Every member of staff has a duty to ensure that public funds are safeguarded and therefore, everyone is responsible for:

 

§   Acting with propriety in the use of College resources and the handling and use of College funds in all instances. This includes cash and/or payment systems, receipts and dealing with suppliers.'

•          4.6 DISCIPLINARY ACTION

 

'After full investigation the College will take legal and/or disciplinary action in all cases where it is considered appropriate. Any member of staff found guilty of a criminal act will be considered to have committed a serious disciplinary offence and will be dismissed from the College on the grounds of gross misconduct.'

 

•          APPENDIX 1

INDICATORS OF FRAUD

 

'▪ Missing expenditure vouchers and unavailable official records'

 

•          APPENDIX 2

COMMON METHODS AND TYPES OF FRAUD

 

'▪ Secondary employment during working hours

§   Unrecorded transactions

§   Cash stolen'

 

•          APPENDIX 3

EXAMPLES OF GOOD MANAGEMENT PRACTICES WHICH MAY ASSIST IN COMBATING FRAUD

 

'▪ Ensure staff are fully aware of their rights and obligations in all matters

concerned with fraud.'

 

It was not disputed that the claimant was aware of the existence of this procedure but no evidence was adduced as to any briefing or training having been provided to her in respect thereof.

15.          The claimant was absent from work for approximately four months from the beginning of 2010 in and around which time she was diagnosed as suffering from fibromyalgia type symptoms.

 

16.          In 2010 the respondent produced a cash handling procedure entitled 'SOUTHERN REGIONAL COLLEGE - CASH HANDLING PROCEDURES' which set out under;

 

•          'GENERAL GUIDELINES

 

§   All documentation relating to cash handling must be retained for a minimum period of 7 years following the end of the financial year to which they relate.

 

§   Lecturers are responsible for ensuring monies relating to their areas of responsibility are handed over to Campus Services for lodgement on a daily basis.'

 

•          'MISCELLANEOUS INCOME

LURGAN CAMPUS

 

Beauty Therapy, Hairdressing and Crèche

 

A cash float and reconciliation sheet should be issued by Campus Services on a daily basis to a designated member of staff. The float should be signed for by the person collecting the cash. Every customer should be issued with an official College receipt or till receipt and a copy retained by the issuing department. At the end of each session the daily takings, till printout and completed reconciliation sheet should be returned by the member of staff. The takings should be checked by Campus Services and reconciled to the X & Y till readings where appropriate. The members of Campus Services staff checking the takings should sign the reconciliation sheet to verify that takings are correct as stated and issue a receipt from the Agresso Revenue Manager to the relevant department/section.'

 

17.          It was the responsibility of the respondent's Heads of School and line management to ensure that staff were advised of new procedures. The respondent was unable to confirm specifically how or when the claimant was made aware of the written cash handling procedure and is accepted that the claimant was not first aware of it until after September 2015. The claimant did however in practice at least once a week during the academic year for more than ten years satisfactorily handle cash from the beauty salon run on campus (to provide experience to students) by collecting a cash float from Campus Services, albeit she did not sign for it on collection, documenting cash received from each client in a receipt book, signing as accurate a reconciliation sheet and lodging takings for the day with Campus Services and obtaining a receipt in respect thereof.

 

18.          It was not normal practice for the respondent to receive money from third parties or to pay monies to students and no cash handling procedure existed in respect thereof.

 

19.          The respondent's 'LECTURER DISMISSAL AND SUSPENSION PROCEDURE' provides at:

 

•                     Paragraph 1,

 

'on it appearing that consideration should be given to the dismissal of a teacher, the matter should be remitted to a committee established by the governing body for that purpose, consisting of 4 members and a chairman who shall be the chairman of the governing body or a member of the governing body nominated by the chairman, the meeting to be convened within 10 days after written notice thereof has been given to the teacher with the notice to specify in full any charge, complaint or adverse report affecting the teacher's conduct which is to be taken into account.'

 

•                     Paragraph 2,

 

'the teacher shall be entitled to appear with a union representative or colleague.'

 

•                     Paragraph 3,

 

'the committee shall not include, as a member or otherwise, any person who was connected with the charge, complaint or adverse report affecting the teacher's conduct or capacity.'

 

•                     Paragraph 4,

 

'in the event of the governing body, having considered the findings of the initial hearing, determining that the teacher should cease to work at the college, the teacher shall have the right to appeal to an independent appeals committee as under paragraph 13 before the determination of the governing body is put into effect.'

 

•                     Paragraph 5,

 

'for the Chairman of the Governing Body to establish the appeals committee and teacher to have the right "... to appeal with a teacher's union representative or a colleague."'

 

•                     Paragraph 7,

 

'the governing body or the principal, in accordance with the approved Articles of Government for the institution of further education, may, in the event of an emergency or allegation of misconduct or for any other urgent cause, suspend a teacher from duty and, if desired, from attendance at the institution.'

 

•                     Paragraph 9,

 

'when a teacher is suspended by the principal under the above provision the question of whether he should be dismissed or reinstated or whether his suspension should continue shall be considered as a matter of urgency by a committee of the governing body. The teacher shall be entitled to be notified of the meeting and to attend as if it were an initial hearing.'

 

•                     Paragraph 10,

 

'in the event of a suspension continuing following consideration of the matter by a committee of the governing body, the teacher shall be entitled to appeal to the Chairman of the governing body as if the question of his dismissal were at issue.'

 

•                     Paragraph 13.1,

 

'the Appeals Committee shall consist of an Independent Chairman appointed by the Labour Relations Agency and 2 panel members, one nominated by the Staff Side and one nominated by the Employers' side of the Directors' / Lecturers' ( as appropriate) Negotiating Committee. Neither shall have a direct interest or involvement in the case.'

 

•                     Paragraph 13.5,

 

'the Committee shall meet the parties to hear the appeal within 20 working days of the matter being referred to the Labour Relations Agency.'

 

•                     Paragraph 13.8,

 

'the decision of the Appeals Committee shall be final.'

 

20.          In April 2013 following illness, the claimant's partner died. As a result the claimant was absent from work for 18 working days during April and May 2013. The claimant considered Mrs Nesbitt unsupportive toward her at the time because Mrs Nesbitt did not acknowledge her bereavement and colleagues of the claimant were unable to attend the funeral because of Mrs Nesbitt's enforcement of the respondent's policy to only release staff if they did not have coinciding teaching duties. On the claimant's return to work, whilst their interactions were limited, these were somewhat strained.

 

21.          In December 2013 the claimant was absent from work by reason of stress.

 

22.          Following initially being contacted at work by Elsie Napier of Walker Communications, an advertising and digital branding firm working on behalf of High Street shopping mall, the claimant accompanied by one College student provided head and neck massages at a 'Pamper me Perfect' promotional marketing event, on Friday 28 & Saturday 29 March 2014 in High Street Mall. A cash payment was made to the claimant in respect thereof by Ms Napier. The amount of the payment made and capacity in which the claimant and student attended were subsequently disputed.

 

23.          In December 2014 the claimant had a cancer health scare.

 

24.          In or around February 2015 Elsie Napier approached the claimant about another proposed 'Pamper me Perfect' event and the possibility of eight students being required. The claimant thereafter discussed with her colleague Clara Havern (Monitoring and Placement Officer whose role it was to provide support) the approach by Ms Napier about the event and that there was a possibility of payment being made for it. As per Ms Havern's later email to Mrs Nesbitt on 7 September 2015, the claimant put to Ms Havern that she might receive some money which she could use to pay the students. Elsie Napier wrote to the claimant subsequently, prior to the 2015 event, setting out Walker Communications' requirements and their proposal for payment. Ms Napier requested the College's indemnity insurance and this was obtained by Clara Havern on management advice from the respondent's Estates Management and provided to Walker Communications.

 

25.          In early 2015 the Claimant's line manager, Nicole Malone, was off work on sick leave.

 

26.          In early 2015 the claimant was teaching a beauty class to Craigavon Senior High School students under a Schools Partnership Programme but was experiencing discipline problems within the class. The claimant had raised the discipline issue with management and was advised to have disruptive pupils excluded. The claimant declined however to follow the advice given to her because the students were near the end of their course and she wished them to complete it.

 

27.          In or around March 2015 the claimant and her eight year old daughter moved house to return to live with the claimant's parents following the death of her partner.

 

28.          Prior to the 2015 event the claimant approached Lynn Bussell, one of two Technician Demonstrators at Lurgan campus about the possibility of getting products and equipment for use at the event. Ms Bussell asked the claimant to make up a list and said that she would run it past management for approval for stock and equipment to be taken off the premises. The claimant informed Ms Bussell not to worry about her request. It is not clear whether the claimant withdrew her request to Ms Bussell immediately thereafter or following an intervening period.

 

29.          In preparation for the 2015 event the claimant spoke with students about the treatments they wished to offer at the 2015 event to establish what was required, some of whom indicated that they wished to use their own products.

 

30.          The claimant obtained prior consent from Nichola Gibson, [Deputy Head of School HBSS Lurgan Campus] to close the campus beauty salon two hours early on Friday 13 March 2015 so as to accommodate her and the student's participation in the 2015 'Pamper me Perfect' event.

 

31.          On both Friday 13 March & Saturday 14 March 2015 the claimant accompanied by six College students participated in the 'Pamper me Perfect' event from 12pm- 4pm in High Street Mall. Clara Havern attended to take photographs for the College. The event was very popular and long queues formed for the beauty treatments, it was however well managed by the claimant and considered a success by Walker Communications. Payment of £600 cash (enclosed in three envelopes with £200 in each) was given by Ms Napier to the claimant. It was in dispute whether the claimant informed Clara Havern of receipt of the cash payment from Walker Communications and whether she discussed with her how to handle it. Out of the £600 received from Walker Communications the claimant distributed £30 to each of the students. What the claimant did with the £420 balance was in dispute.

 

32.          The claimant was not in work on Monday 16 March 2015.

 

33.          On Tuesday 17 March 2015 Southern Regional College was closed for St Patrick's Day.

 

34.          On the morning of 18 March 2015 the claimant met Cathy Douglas, a member of the respondent's staff, whilst both were at the Campus reception. Ms Douglas observed the claimant hand to the receptionist a white envelope. When asked nearly nine months later about what she observed Ms Douglas recalled that she had asked the claimant if she had a good weekend, the claimant had replied no, that she was too tired as she had a beauty event at the High Street Mall on Saturday so 'never went anywhere', Ms Douglas was uncertain as to whether the receptionist at the time was Heather Bann or Carmel Douglas but recollected that the claimant spoke to the receptionist and may have said 'money for the weekend' but that she 'really didn't know'.

 

35.          On 19 March 2015 the claimant lodged £22 for salon takings with Campus Services for which she was issued a receipt.

 

36.          On 24 March 2015 an incident occurred in respect of which one of the SSP student's subsequently made an allegation that the claimant had pulled her hair during class.

 

37.          The claimant took sick leave on 27 March 2015 in respect of which she provided the respondent a sick line for four weeks citing stress.

 

38.          Whilst absent from work on sick leave Mrs Nesbitt contacted the claimant to inform her that an allegation had been made against her by the SSP student that the claimant had pulled her hair during class.

 

39.          The claimant returned to work on 28 April 2015 so as to deal with the allegation made against her. Following investigation and consideration of the SSP student's allegation Mrs Nesbitt wrote to the claimant on 1 July 2015 and confirmed that she was taking action short of invoking the formal disciplinary procedure and was formally counselling the claimant regarding her conduct. No formal disciplinary action was taken.

 

40.          In June 2015 the claimant's divorce was finalised.

 

41.          On 27 August 2015 Mrs Nesbitt came into possession of an undated letter from Elysie Napier, Senior Account Manager of Walker Communications to the claimant referring to payment to ' The Southern Regional College of £600- £800 for the supply of their services and products over the two days' for the 2015 'Pamper me perfect' event due to take place on 13 & 14 March 2015. We do not find credible Mrs Nesbitt's account of this letter having been passed on to her by the school administrator following its discovery by a Technical Demonstrator in photocopying, but in any event, Mrs Nesbitt was not previously aware of the letter or that payment had been made for the 2015 event and thereafter took steps to investigate the matter.

 

42.          Mrs Nesbitt held telephone conversations with Walker Communications on 27 August and 1 September 2015 and recorded in her investigatory note that Ms Napier confirmed events took place in both March 2014 and March 2015 following Ms Napier contacting the College. Mrs Nesbitt asked Ms Napier to look into details of the exact payment for the event and to confirm the method of payment.

 

43.          In or around September 2015 the claimant's daughter suffered an asthma attack lasting two days.

 

44.          On 3 September 2015 without prior notice Mrs Nesbitt asked the claimant to attend an Investigatory meeting, Nicole Malone was also present. Mr Devlin under cross examination accepted that notice given to the claimant of these meetings was 'short'. Minutes taken of the meeting were not received by the claimant despite requests for them until 30 September 2015 by which stage the claimant raised concern at the effect of the delay on her recollection. Whilst the claimant was not entirely content with the minutes she ultimately signed them following some amendment in November 2015 and returned them with a letter stating that she was not happy that they were accurate. The minutes record that Mrs Nesbitt at the outset explained the purpose of the meeting as a preliminary investigation into the payment and lodgement of money for a marketing event in High Street Mall in March 2015; advised the claimant she was not entitled to any representation at the meeting; that the investigation 'may lead to a finding of potential fraud/ gross misconduct'; that it was potentially the most serious case of gross misconduct; the meeting was to establish the facts surrounding the process of the event and information gathered could lead to a disciplinary hearing. In response to questions put it was recorded that the claimant confirmed:

 

•          There were two events, one in March 2014 attended by her with one student, for which they were paid £30 each. The second event was in March 2015 which she attended with eight students.

 

•          Both events were arranged through the College.

 

•          She received the Walker Communications letter (outlining payment) before the 2015 event.

 

•          Elsie Napier paid her £600 in cash, for which the claimant did not issue a receipt, of which:

 

o    She lodged roughly £200 through campus services reception via Heather Bann around 16 March 2015, Heather Bann issued her a receipt but the claimant did not now have it having recently cleared out her receipts.

 

o    She lodged £100 in the safe to keep for petty cash (as suggested by Clara Havern in a phone call made by the claimant to her on the claimant's way home) and then used it to purchase salon products which were low in stock and required, nail polishes were bought and receipts kept, but were now discarded.

 

o    She gave students £30 each, after discussion with Clara Havern on the phone as to what was a fair amount to reimburse the students for the Saturday and using their products.

 

o    In relation to the remainder she;

 

§   kept back money for having brought a student to the event and driving up and down to the College,

 

§   Used the rest to buy lunch and water for the students.

 

•          She did not report the payment to anyone in the College but had told Nichola Gibson that payment would be made.

 

•          She had been working outside school hours and had seen in a policy that she was entitled to payment for this and that was why she paid the students out of the money, but could not recall the policy she had read stating this.

 

•          The only products used from the College were couch roll and cotton discs along with the student's own products, the two couches used were the claimant's own and a student's couch.

 

•          In response to being asked whether she knew the protocols and what was supposed to have been done, that it was the first time she had been given money for anything like this. She presumed as this was in her own time that it was up to her to distribute the money and referred to ' the policy' where it stated that it was her own time but when asked what policy she was referring to she could not remember the specific policy.

 

•          She had not taken part in marketing events like this before.

 

•          In response to what member of management she had sought advice from; that she had asked Nichola Gibson, although did not tell her about the receipt of the money.

 

•          That she was not aware of the cash handling policy, that she handles money in the commercial salon and is always careful to follow procedure for this.

 

•          That she recognised she should have done things differently, had a lapse of judgement and was not thinking straight due to the stress of her divorce and death of her partner.

45.          On 3 September 2015 Mrs Nesbitt again telephoned Walker Communications, it is unclear whether this was before or after her meeting with the claimant as the recorded times overlap. Mrs Nesbitt noted that Ms Napier confirmed £150 was paid for the 2014 event and £600 (in three envelopes of £200 each) for the 2015 event to the claimant. The claimant's assertion that she and the student were given £30 each for the 2014 event was not put to Ms Napier.

 

46.          On 3 September 2015 Mrs Nesbitt held an investigatory meeting with Clara Havern with Nicole Malone also present. Ms Havern confirmed that she had arranged for insurance documentation required for the 2015 event which she then passed on to the claimant, she had gone to the event to take a photograph, and named the six students involved. The following questions and answers were also recorded in the respondent's notes of the meeting:

 

EN: Did any member of staff ask you for advice on handling cash for this event?

 

CH stated that JL had mentioned that there was a possibility of payment for the event. But that was all she was aware of.

 

EN: Did JL ask your advice on how to handle the cash from this event?

 

CH stated that she was very sure that JL did not ask her about handling cash or money stating 'I didn't advise Jill on money'.

 

EN: Are you aware of the amount of money involved?

 

CH said she was not aware of the amount of money involved but confirmed that students had told her they had been paid....

 

47.          On 7 September 2015 Clara Havern sent an email to Mrs Nesbit regarding the investigation raising that she felt she was being intimidated and put under undue stress by the claimant arising out of approaches made to her by the claimant stating that the claimant was under investigation for fraud and suggested that she also would be implicated, and that the claimant had tried to imply that she knew that the claimant received money which Ms Havern denied. Ms Havern set out in her email to Mrs Nesbitt that ' on the claimant prior to the event mentioning she might receive some money with which she could use it to pay the students' she had advised the claimant to tell her line manager and that was the last Ms Havern had heard any mention of money; that the claimant had then stated she took full responsibility for taking the money, was not thinking straight at the time as she was very depressed and had financial difficulties and family problems and were she to do it over again would have done things differently; that the claimant then indicated she was going to look up phone records to prove that she did have a conversation with Clara Havern around the time of the event as if to prove that she was complicit to the claimant receiving money, in response to which Ms Havern had asked the claimant whether she was threatening her.

 

48.          On 8 September 2015 Mrs Nesbitt telephoned and put questions to three of the students identified as to whether they participated in the 2015 event, products used, payment received, how they got lunch and how they travelled to and from it, Mrs Nesbitt recorded in her investigatory note their answers that they all had participated in the event, water had been provided by the claimant, they had used college stock and had all made their own travel arrangements. One confirmed receipt of £30, could not recall if the claimant bought lunch and said college beds were used; One confirmed receipt of £40; the last confirmed receipt of £30, a box of chocolates and a thank you card from the claimant, said beds used were from a friend of the claimant/ SRC instructor, she used her own nail polishes, as had some of the other girls, and that lunch, water and some supplies such as wipes were bought by the claimant.

 

49.          By email on 8 September 2015 to Lynn Bussell, HBSS Technician Demonstrator, Mrs Nesbitt asked what products were used during the 'Pamper You Pamper me event' and if any staff member approached her for stock for the event. Ms Bussell replied by email that the claimant asked her for products for the event so Ms Bussell asked the claimant to make up a list and she would ' run it past management for approval for stock and equipment to be taken off the premises. I was told not to worry about it she would get something else sorted.' Ms Bussell set out that she did not know if College products were used in 2015 although a student said they were, and said College stock was used in 2014. Mrs Nesbitt then held a telephone interview with Ms Bussell and recorded in her note thereof Ms Bussell's response to her question whether the claimant asked her for products to attend the events in March 2014 and 2015, that the claimant took product and equipment (a portable couch) for the 2014 event but Ms Bussell could not confirm if products were taken for the 2015 event.

 

50.          By email on 8 September 2015 Jenny Wilson, SRC Finance & Procurement Manager, confirmed to Mrs Nesbitt that she could not trace a record of a lodgement for £200 being made in March 2015 and that she had also checked through the records for the whole year and there had been no lodgement to the School for that amount.

 

51.          On 9 September 2015 Mrs Nesbitt together with Mr C Evans (Deputy Head of School) met with Marie Louise Devlin (Full Time lecturer, Beauty Therapy) and asked why she had approached Ms Havern with the claimant to discuss a private investigatory meeting. Ms Devlin explained it was not planned, the claimant was upset after her meeting with Mrs Nesbitt and her being there was co-incidental. Mrs Nesbitt asked was Ms Devlin aware that this meeting was seen as intimidating by Ms Havern, Ms Devlin confirmed this was not intended, there had been no shouting or raised voices and she at no time sensed it being seen as threatening.

 

52.          On 11 September 2015 Mrs Nesbitt spoke with Heather Bann, Campus Services Administrator, Lurgan and recorded in her investigatory note thereof her question to Ms Bann:

 

EN: Do you recall being asked by JL to lodge £200 in relation to an event in March 2015?

HB stated that she had no recollection of money to that value being given to her for lodgement by JL. HB said that JL would have given her money to lodge after a commercial salon on a regular basis.

EN: What is the procedure for receiving cash?

 

HB said that she followed the cash handling procedure for issuing receipts when a lodgement was made and that would have been the same procedure followed had JL given her £200.

 

53.          Mrs Nesbitt and Ms Malone had a second meeting with Ms Havern on 14 September 2015 in response to Ms Havern's email of 7 September 2015. Notes of the meeting record:

 

'The contents of the email were discussed with particular focus on the allegation by JL that CH "would be implicated in the investigation" as well as a reference to potential evidence of telephone conversations that proved that JL had called CH at that time. At this comment CH stated that she asked JL if she was threatening her, CH advised that JL did not answer.'

 

54.          On 14 September 2015 without prior notice Mrs Nesbitt asked the claimant to attend a further Investigatory meeting with her and Ms Malone. The agreed minutes in particular record:

 

•          ' JL stated that she wanted to make clear that the March 2014 event was nothing to do with SRC that she had arranged it herself with Walkers and that any money received from the event was her own to keep. She said that she had attended the event with one SRC student, and that this student was there representing her own salon (the student's) and had nothing to do with the college. JL stated that had nothing to do with the college. JL stated that she had no student contact on a Friday and that she was entitled to go in her own time.

 

EN asked how JL was made aware of the need for assistance at the event. JL stated that she received a phone call to 'work' [SRC] asking for someone to attend and that she would have given Ms Napier her phone number at that time.

 

It was confirmed by JL that a letter was not received for the first event.

 

JL reconfirmed that the March 2014 event was not SRC related, there was no insurance and that she used her own products. '

 

•          Having now had time to think about the 2015 event the claimant had broken down on a spreadsheet total expense costs being £296 and ' that she had receipts in her diary and that she knew in her head where [she] bought them and how much it cost.'

 

•          The claimant had ' vague memories' of how she had, as per her previous mention, reported the March 2015 event to Ms Gibson and ' she thought it was probably mentioned to Nichola in passing in the corridor.'

 

•          In response to why she did not share the information/letter with her line manager, ' JL said that she didn't think to do anything. She said that life is busy and that SRC teaching is busy. She stated that her life was in turmoil at that time and that she wasn't thinking logically. She said that she never felt at any time that she was doing anything wrong or dishonest and that if she could turn back the clock, she would check it out. JL said that she thought we were probably thinking what right had she to do that? Stating that she honestly thought she was looking after the students, she had acted in the best interests of the students and did what was morally correct in reimbursing the students.'

 

•          The claimant was hurt that Ms Havern, her friend and colleague, was now denying what happened during their conversation.

 

•          The claimant said she had nothing to hide and put her hands up as she made a mistake.

 

•          That the claimant had not found any of the receipts since they last met.

 

•          That the claimant since their last meeting had looked for a cash handling policy to confirm statements made during that interview but that she could not find the policy now.

 

•          The claimant stated ' we all know that I have done the wrong thing. My life was in turmoil as I didn't think. I have never done anything to question my honesty and that is what I am struggling with...'

 

•          That the claimant had used the £100 retained for petty cash to buy products, had records to show the College salon was low in products at the time and confirmed no manager was consulted for approval.

 

•          The claimant put that Mrs Nesbitt had informed her at the last meeting that she had committed gross misconduct and fraud, Mrs Nesbitt responded that she had told the claimant that there was the potential for fraud and was what the investigation was about.

 

55.          On 14 September 2015 Mrs Nesbitt held a telephone interview with Ms Downey another student who participated in the 2015 event and put to her the same questions as put to the previous three students, Mrs Nesbitt recorded Ms Downey's response was she had been paid £30, had used her own products, brought her own lunch, could not recall if the claimant had supplied water and she had travelled with another student to the event.

56.          On 14 September 2015 Mrs Nesbitt held a telephone interview with Nichola Gibson. Mrs Nesbitt recorded in her investigatory note that Ms Gibson did not recall the event in 2014 and in respect of Ms Gibson's recollection of the 2015 event:

 

EN: Did JL ask your advice for lodging money or handling cash for this event?

 

NG stated that she had no knowledge of JL asking for advice on cash handling for this event.

 

EN: At any time do you recall a conversation about payment for this event with Ms Leeman?

 

NG stated that she never had any such conversation.

 

57.          On 14 September 2015 Mrs Nesbitt telephoned Ms Napier who when asked why she had paid the claimant cash in March 2014 and 2015 and if the claimant had requested this specifically replied that the claimant had said it would be easier if paid in cash to pay the therapists. She also confirmed that she agreed the amount based on payments made previously to other professionals and there was no individual negotiation with the claimant, that there was no audit trail of communication with the claimant or the College for the events and communication was via telephone.

58.          On 15 September 2015 Mrs Nesbitt again telephoned Ms Downey and one of the other students she had previously spoken to, Ms Doak, to ask if the claimant gave either confectionary or snacks during the event. Ms Downey replied that she did not get any chocolates or snacks on the day and Ms Doak confirmed that she was given a box of chocolates and card by the claimant but did not recall getting snacks or sweets.

 

59.          On 17 September 2015 the claimant telephoned Mrs Nesbitt seeking copy minutes from the investigatory meetings.

 

60.          On or around 18 September 2015 the claimant telephoned Mrs Nesbitt and raised concerns she held regarding the investigatory process, Mrs Nesbitt considered their telephone conversation to have become repetitive and advised the claimant that she was ending the call.

 

61.          On 18 September 2015 the claimant sent an email to Mrs Nesbitt, copied to Paul Hamilton (her Colleague and Trade Union representative) and Raymond Sloan to record her concerns over the manner in which Mrs Nesbitt was conducting her investigation which were such that she was also copying her email to Human Resources for their information. Matters raised included:

 

•                     At the investigation meeting on 3 September 2015 the claimant was accused of fraud and it was clear to her from comments made that Mrs Nesbitt had formed a pre-determined decision without having the claimant's explanation.

 

•                     It appeared Mrs Nesbitt had gone through the claimant's personal diary and found the Walker Communications email in relation to the event and the claimant considered under the respondent's disciplinary procedure, as the person that had raised the matter, Mrs Nesbitt should not be carrying out the investigation.

 

•                     In reference to their conversation at 5.20 pm the day before the claimant had,

 

' for some time been asking for the minutes of the investigatory meeting held on Thursday 3 September and reconvened on Tuesday
15 September [sic]. You stated that you are "still working on the minutes and still have people to contact"! As per my previous emails I cannot understand why the minutes have not been finalised and produced to me. Any further investigations do not prevent you providing minutes of meeting that have now taken place. Minutes were taken by Nicole and should have been typed up after the meeting and forwarded to me for approval. Minutes are a factual account of what is said I am now at a disadvantage, over two weeks later, in attempting to approve them.'

 

•                     When the claimant had tried that day to set out her concerns with the process and how she was feeling victimized by Mrs Nesbitt, Mrs Nesbitt was dismissive and,

 

' said to me "stop speaking". You then hung up the phone.

 

It would appear that you are not happy with the explanations provided by me and the students . I am very concerned that you will unreasonably continue to investigate until you find what it is you are looking for. This matter appears for whatever reason to be of personal importance to you and you are spending a disproportionate amount of time and resources on this matter..........

 

This whole matter is causing me severe anxiety and stress and I have been prescribed medication by my G.P.

 

I must insist that this unsatisfactory matter is brought to a conclusion. If my employer having carried out a proper and fair investigation believes there is a case for me to answer, then the allegations should be put to me formally with full findings of the investigatory process, together with all documentary evidence. I have a 15 year unblemished record.. .'

 

62.          Mrs Nesbitt over a telephone call told the claimant in response that she would not be getting a reply to her email but that her concerns were noted.

 

63.          The claimant after a panic attack on her way to work one morning took sick leave and was certified by her GP on 22 September 2015 as absent due to low mood, panic attacks and stress.

 

64.          On 30 September 2015 the claimant first received, for agreement, minutes of the investigatory meetings on 3 & 14 September 2015. Mrs Nesbitt explained in her evidence that ' A number of witnesses were named by Ms Leeman, these staff members had to be questioned, existing diary appointments/ meetings also needed to be addressed... the notes were presented to Ms Leeman as soon as they were ready...'. Following correspondence thereafter between the claimant and Mrs Nesbitt a final amended draft of the minutes was ultimately provided to the claimant and signed by her approximately ten weeks after the first investigatory meeting subject to the claimant's expression of unhappiness at the delay and stated view that her recall had been compromised by it.

 

65.          The claimant was referred by her GP on 29 October 2015 for assessment by the primary mental health care service.

 

66.          On 6 November 2015 Mrs Nesbitt emailed staff members of the Hairdressing, Beauty and Sports Studies School setting out,

 

'We have had two recent incidents where cash handling processes have been compromised. It is important that you receipt all cash received from students and that students get a receipt for any money they give to you. If you need more of the blue duplicate receipt books we can order them through TDs.

 

No cash should be kept anywhere but in the safe at campus services.'

 

67.          Mrs Nesbitt compiled an Investigatory report dated 11 November 2015 detailing her investigation, evidence relied upon, her findings and conclusion on balance that the claimant had accepted monies from Walker Communications and redistributed it as she saw fit, without permission from College Management and knowing payment was intended for the College and hence reasonable to conclude the money was accepted for personal gain and her actions constituted fraud as defined in the Colleges Anti-Fraud Policy and she recommended the matter be formally addressed under the Lecturer's Disciplinary Procedure as gross misconduct. Attached thereto were records of investigatory meetings and discussions held.

 

68.          On 13 November 2015 Mr Gerard Devlin wrote to the claimant confirming that he was in receipt of an investigatory report from Mrs Nesbitt in relation to allegations of fraud recommending progression of the matter under the respondent's formal disciplinary procedure based on her finding that the claimant;

 

•        Accepted monies from Walker Communications (£150 in March 2014 and £600 in March 2015);

 

•        Took these actions without permission from College Management and knowing that this money was given by Walker Communications with the intention of payment to the College;

 

•        Accepted this money for personal gain.

 

Mr Devlin confirmed that he had reviewed the report and as a result had arranged a disciplinary hearing for Thursday 26 November 2015 at 10am to consider the following allegations:

 

•       Serious breach of cash handling procedures which may potentially constitute gross misconduct.

 

•       Failure to account for money paid to the College which may potentially constitute gross misconduct.

 

•       Retaining for personal use money paid by a third party to the College for services provided by the College, such action potentially amounting to fraud which constitutes gross misconduct.

The claimant was also advised:

 

•       Due to the seriousness of the allegations the hearing had been invoked at Stage 4 of the Disciplinary Procedure and disciplinary action could include dismissal under the Dismissal and Suspension Procedure for Full-time Teachers in Institutes of Further Education.

 

•       If allegations were upheld her actions might be deemed to have destroyed the trust and confidence which must exist between employer and employee.

 

•       If it were determined she had committed fraud referral would be made to the PSNI under the Anti-Fraud Policy.

 

•       Mr Devlin would act as the disciplinary authority and a representative from the Human Resources Department would be present.

 

•       Mrs Nesbitt and Ms Malone would present the case against her.

 

•       She had the right to be accompanied by a work colleague or Trade Union representative.

 

Mr Devlin enclosed for the claimant's information:

 

•       Mrs Nesbitt's Investigatory report and appendices.

 

•       A copy of the Disciplinary Procedure for Teachers in Institutions of Further Education.

 

•       A copy of the Dismissal and Suspension Procedure for Full-time Teachers in Institutes of Further Education.

 

The claimant first became aware on receipt of the investigation report that the respondent considered the £200 alleged lodged with Campus Services as unaccounted for.

 

69.          On 13 November 2015 the claimant prepared a draft letter raising a formal grievance against Mrs Nesbitt addressed to Carolyn Davison, Senior Management, SRC but after discussion with her trade union representative decided not to not send it.

 

70.          The claimant obtained a report from her GP in November 2015 ( Mr Devlin later referred to this report as having been dated 13 November 2015) in which her GP confirmed that the claimant had consulted in 2010,

 

' with generalised joint and muscle pain, initially treated with oral steroids for a working diagnosis of polymyalgia rheumatic. After attending Dr Cairns, consultant Rheumatologist Musgrave Park Hospital, the oral steroids were gradually reduced and discontinued as her symptoms were reported to be more likely attributable to fibromyalgia. Since then, Jill has periodically reconsulted regarding flare-ups of her fibromyalgic type symptoms and at times been treated with amitriptyline.

 

In addition Jill has suffered from episodes of stress, anxiety and depression heightened by an acrimonious divorce, death of her partner and breast cancer scare initiated after an abnormality was seen on her mammogram in December 2014, on the background of a strong family history of breast cancer.

 

In March 2015, Jill consulted explaining that she was having difficulty coping with her stress low mood and anxiety. She reported that she had been intolerant of medication prescribed in December 2014. She commenced atternate propranolol, a beta blocker to help her control her anxiety symptoms.

 

Jill Reconsulted in September 2015 with low mood and episodes of anxiety building to panic attack symptoms. Propranolol was recommenced along with an antidepressant, citalopram. The latter was later changed to another antidepressant, sertraline due to perceived lack of effect and Jill was referred to the community health team for assessment, counselling and support. The dose of sertraline has since been increased and she continues to have regular GP consultations.'

 

71.          On 16 November 2015 the claimant attended an occupational medical assessment with Dr Denise Connolly MB MRCPUK following referral by the respondent in response to her sick absence. Dr Connelly's report set out her assessment that the claimant,

 

' was obviously emotional and upset during the consultation. An independent scoring assessment would indicate ongoing depressive symptoms with anxiety symptoms at the severe end of the spectrum.'

 

Recommendation was made that,

 

'In relation to Ms Leeman's disciplinary meeting I would advise that such meetings progress at a pace that Ms Leeman can cope with, that she is facilitated to take breaks as required, and that she is supported by an appropriate person if deemed necessary.'

 

In response to specific questions referred to as having been put by the respondent (albeit the questions are not replicated in the report) Dr Connelly stated,

 

'Ms Leeman has a history of depression/ anxiety as well as Fibromyalgia Syndrome. Both these conditions may be worsened by out of hours/ shift work assessment .'

 

72.          On 19 November 2015 Ms Napier emailed the claimant on her personal email address indicating in light of the great success of the 2015 event she hoped the claimant and girls might participate again at an event in 2016.

 

73.          O'Reilly Stewart Solicitors by letter dated 25 November 2016 requested a medical report from the claimant's GP for the disciplinary hearing due to be held on 26 November 2015 ' highlighting our client's difficulties and the impact that they had upon her. In particular we understand that Fibromyalgia may cause "fibro-fog". Our client is having difficulties remembering events on March 2015. Any helpful comments you can provide in that regard would be of assistance.' The respondent was not aware of this request to the claimant's GP.

 

74.          Following a request by the claimant for an alternative date due to the unavailability of her trade union representative the disciplinary meeting was rescheduled to take place on 10 December 2015.

 

75.          On 26 November 2015 in response to a request by the respondent that she forward documentation intended to be relied upon at the disciplinary hearing, the claimant wrote to Mr Devlin setting out a statement refuting the allegation that she fraudulently accepted money intended for the College for her own personal gain and attached supporting documentation. The claimant set out:

 

•          She ran highly successful events in 2014 and 2015 for Walker Communications, for which monies received from them, as detailed in the investigation report, were allocated to students to reimburse them for their time, the cost of products and costs associated with running the event.

 

•          She acknowledged and apologised for her error in acting out with the cash handling policy and associated procedure which she attributed to not thinking logically due to traumatic events in her personal life undergoing a divorce.

 

•          She assured the respondent there would be no repetition of the lapse in protocol.

 

•          She considered to conflate a breach of policy into a criminal accusation of fraud was disproportionate and unjust.

 

•          That the breach of procedure was not motivated out of personal gain as was shown by the student's evidence of receipt of £30 or £40 from her.

 

•          She had a statement from a colleague, Catherine Douglas who witnessed her lodging £200, and attached a statement from her dated 17 November 2015 which said 'I would confirm being at the reception desk on the Lurgan campus of Southern Regional College after the 2015 St Patricks day holiday and witnessed Jill Leeming [sic] hand over an envelope to the receptionist on duty at that time'.

 

•          In relation to trust and confidence, that she was a fundamentally honest person, was 'mortified' when it was explained to her that her conduct could amount to fraud, there was no intention on her part to defraud the college and was not logical for her to do so and risk her livelihood.

 

•          Her recognition that she did not have authority to distribute the monies from Walker Communications in the way she did and whilst not taken for her own personal gain offered repayment to restore management's confidence in her.

 

•          The negative impact of the accusation and time taken to investigate upon her health was reflected in the occupational health report of 16 November 2015.

 

•          There was delay in supplying investigatory minutes for her agreement and raised her concern at possible disadvantage arising due to her consequent exacerbated anxiety and the possibility of faded recall.

 

•          Her apology and regret, request for consideration of her unblemished disciplinary record, character references from colleagues and professional associates who could vouch for her honesty and trustworthiness and her readiness to undertake any training in cash handling or other procedures deemed necessary. Favourable references were attached from Nichola Gibson (as former line manager of the claimant), John Quinn (SRC Director of Business Engagement & External Relations), Noella Murray (Principal of Drumcree College, Portadown) and Jacqueline Hutchinson (former colleague of the claimant).

 

76.          A disciplinary hearing took place on 10 December 2015 before Mr Devlin assisted by Mrs Hughes, also in attendance were Mrs Nesbitt and Ms Malone who presented the case against the claimant, the claimant, Katherine Clarke the claimant's UCU Representative and Sandra Barry as note taker. Agreed minutes of the disciplinary hearing were produced at hearing. Mrs Nesbitt presented the case against the claimant from her investigation concluding that on the balance of probability that the claimant had accepted the money from Walker Communications and redistributed this money as she saw fit and these actions were taken without permission from College Management and knowing that this money was given by Walker Communications with the intention of payment to the College amounting to a serious breach of trust central to the employment relationship especially when there was a requirement to handle money on a daily basis. After panel questions Ms Clarke then presented the case on behalf of the claimant and raised points in line with those as put above by the claimant in her letter to Mr Devlin of 26 November 2015, in particular refuting vehemently that the claimant defrauded the College for personal gain; raising as bad practice the delay of 2-3 weeks in the respondent providing notes from the investigatory meetings for agreement which should have been contemporaneous; recognition that the claimant did not have the authority to distribute the monies in the way she did; requesting account be taken of the claimant's unblemished disciplinary record of 15 years; and submitted that criminal action of fraud and the possibility of dismissal were steps too far and not consistent with the evidence. After comments in response by Mrs Nesbitt, Mr Devlin made further enquiry of the claimant in respect of a colleague witnessing her lodging monies, the claimant stated ' that Mrs Jenny Wilson had confirmed that £200 had not been lodged but there was £200 in the envelope when she went to the front desk to lodge it. She indicated that Mrs Catherine Douglas was at the counter and had seen her hand over the envelope to Mrs Heather Bann.' Mrs Hughes asked why this was not shared with the investigation panel and the claimant stated she did not know the money was not accounted for until she received the investigation report and had believed all the money was accounted for. Mr Devlin put that Mrs Douglas' statement did not mention the amount of £200, just an envelope and he needed the claimant to help him understand what was actually seen by her. The minutes record:

 

'Ms Leeman said sorry that she had always endeavoured to hand over the cash, the money went to the counter and Mrs Douglas was there when it was handed over.

 

Mrs Hughes asked what usually happen[s] when money is lodged. Ms Leeman replied she is generally given a receipt the exception would be if there was no receipt book or the system was down and if this was the case she would collect it later. Mrs Hughes asked if a receipt was given at the time and Ms Leeman responded that she could not remember.

 

Mr Devlin stated that there were other receipts in the book at the time but there is no sign of £200. He added that he was having to inform his decision on evidence and there is no evidence or receipt to confirm a lodgement for £200.'

 

Mr Devlin sought clarification over the £600 and amount paid to students, the claimant confirmed whereas Walker Communications initially asked for eight students only six attended; £180 was paid to the students and there were £212 expenses including for foundation, mascara and cotton wipes; that students and she brought their own products. Mr Devlin queried why the claimant had not put in a bill to College to pay for these, the claimant replied the event was never done before and she thought she was doing the right thing to support the event and students. On being reminded by Mrs Hughes that she had done a previous event in 2014 the claimant replied that no-one wanted to do the 2014 event, she thought she would like to do it herself and one of the students said she wanted to do it but to represent her own salon, the 2015 event was all SRC students, she did the 2014 event in her own time and nothing was taken from the College. Mr Devlin stated his understanding was that the 2014 event was a college event. Mrs Nesbitt agreed and referred to her report and that her discussions with Walker Communications alluded to that and they presumed they were working with SRC. Ms Malone put that Walker Communications had contacted Southern Regional College, the call went to the claimant while she was working for Southern Regional College.

 

Mrs Nesbitt queried why Walker Communications would have sent out a letter for the 2015 event but not the 2014 event and the claimant confirmed there was no letter for the first event.

 

Mr Devlin raised payment made for the 2014 event and £90 of the £150 unaccounted for, the claimant maintained she ' was nearly 100% sure she got £30 for that day' and disputed college stock or equipment having been used as noted by Ms Bussell, because head massages were given and beds were supplied by Ms King and the claimant.

 

Mr Devlin enquired how the School would get stock quickly if the College had a last minute event, Ms Malone confirmed they would not be able to do it if there was less than two weeks' notice and would look at postponing, if there was no stock, or borrowing stock from another campus which would require a requisition or letter but she was unaware of stock used as there was no letter or requisition. Mr Devlin asked the claimant how many days before the event she requested stock but she could not recall even if it was days or weeks.

 

The claimant stated that the students would have had the best makeup and brushes and used the best of their own stock. The claimant said she had a spread sheet and could account for expenditure being £180 paid to students and £15.98 paid for foundation, £9.98 for mascara and £1.98 for cotton wipes so the students could carry on at the event. Mrs Nesbitt acknowledged that running out of stock at the event would have required this because of waiting clients but the claimant would have been reimbursed in the normal manner if a receipt had been brought back to College for these items.

 

Mr Devlin then sought clarification on the £100 for petty cash. The minutes record,

 

' He asked Ms Leeman to explain about the £100 for petty cash, and how it was lodged. Ms Leeman said it was in an envelope in the cash box that holds the float for the salon and that it was kept in the office by Donna Coleman. Ms Leeman said the £100 was used to replenish stock immediately. She said it was quickly used for resources that were needed on the Campus.

 

Mrs Hughes enquired if this was the usual process. Ms Leeman said it was not but they were not getting orders processed and were being turned down, she said Lurgan was lacking resources. Ms Leeman said she had done some research into this matter and indicated that Newry got £12000, Armagh £5500 and Lurgan only got approximately £450 worth of orders. She said it was not the first time Lurgan was not resourced and they did not have the resources to teach. She said it was not the correct process but she was trying to resource the department.

 

Mrs Hughes asked if the issue was ever raised with the management team. Ms Leeman said it [was] the technicians 'Lynn' and 'Joanne' did. It was the time Ms Malone was in and out sick and there was poor communication. Mrs Nesbitt said she refuted this allegation, it was not true and that it was news to her that the orders were not being processed.

 

Ms Leeman said when she was brought to the first meeting she had just taught a class from 9am to 3pm, she was trying to give Mrs Nesbitt her most honest account as she was an honest person. Ms Leeman explained when she got home she thought about it and wrote it down, it was £300 expenses for the two days. Mr Devlin asked if she had any evidence of the expenses; £100 petty cash or the £200 lodgement. Ms Leeman replied she has a breakdown but no receipts.'

 

Mrs Nesbitt sought to clarify that the term she used when she met the claimant was 'potential' fraud, that she had never seen the spreadsheet with expenditure breakdown mentioned and disputed the claimant being 'ambushed' in the first meeting and was fully aware of the allegations in the second meeting.

 

Mr Devlin then queried given the claimant had put other mileage claims before and after this event through the normal processes so why did she step out of this process on this occasion. The claimant responded that she had a very stressful family life and said she would not want anyone to go through it and added she could not answer that question.

 

Mrs Hughes referred to the email from Ms Havern included in the management pack and asked if she had a meeting with Ms Havern, the claimant confirmed she did as Ms Havern was fully aware of everything that had been done, was a friend and colleague and the claimant could not understand why she would lie. The claimant confirmed in respect of Ms Havern's statement that the claimant harassed her that it was not in her nature and ' Ms Havern was a friend and she thought the world of her. Ms Leeman told Ms Havern she had to tell the truth, and at which point Ms Havern shouted at her to get out of her office, that she had her own issues and did not want anything to do with it.'

 

In response to Mr Devlin's query Mrs Nesbitt confirmed while aware of the 2015 event she had not been aware of the payment or letter.

 

As a final point before conclusion of the disciplinary hearing Ms Clarke reiterated that they were not saying it was not a breach of protocol but rather disputing the accusation of fraud and the disciplinary meeting shortly thereafter ended.

 

77.          The claimant sent a copy of her GP's report (which Mr Devlin in his report of May 2016 at paragraph 92 refers to as being dated 13 November 2015) to Mr Devlin prior to February 2016, the actual date on which she did so is not clear. The claimant then mislaid the original report and requested a copy of it from her GP.

 

78.          On 11 December 2015 the claimant emailed Mrs Hughes to ask if Mr Devlin would ' accept the spreadsheet of expenditure at this stage, I would like him to see the expenses for the two days.' Mrs Hughes replied on 14 December 2015 that the claimant was given the opportunity to provide any information that she wished to refer to in advance of the meeting and therefore ' not appropriate to forward any new information at this stage. However I note that you did make reference to this spreadsheet and expenditure in relation to the event at the hearing and this will be reflected in the record of the meeting.'

 

79.          On 16 December 2015 Mr Devlin met with Cathy Douglas to clarify points related to the statement submitted for the claimant in respect of which he put fourteen questions to her, included in these as recorded in the minutes were:

 

'4. Can you confirm the exact date you witnessed Jill Leeman hand over an envelope?

18 ^th March 2015. The reason she remembers was Ms Leeman was off on the Monday, St Patrick's Day was Tuesday and they met in reception on the Wednesday. Mrs Douglas had asked Ms Leeman if she had a good weekend to which Ms Leeman replied, 'No she was too tired as she had a beauty event at High Street Mall on Saturday so they never went anywhere". Mr Devlin asked if she could remember what time and Mrs Douglas replied it was in the morning time.

 

...

 

6. Who was the receptionist on duty that day?

Mrs Douglas replied that it was probably Heather or Carmel. Mrs Douglas couldn't remember for certain who was on reception but that it was usually Heather or Carmel. When Mr Devlin asked again she said she couldn't be 100% sure.

...

8. Describe the envelope? What was in the envelope ?

Mrs Douglas replied it was a white envelope and Ms Leeman had spoken to the receptionist but Mrs Douglas said she didn't see inside the envelope and couldn't say what was inside it.

 

9. Jill Leeman states that you witnessed her hand over £200 to the receptionist- did you see Jill hand over £200?

Mrs Douglas replied that she didn't see any money only the envelope and doesn't know what the contents were.

 

10. Can you recall the conversation that took place between the receptionist and Jill? - were you party to the conversation?

 

Ms Leeman did speak to the receptionist but Mrs Douglas wasn't listening. She added that Ms Leeman may have said 'money for the weekend' but she really didn't know.

 

11. Did you see Heather Bann/ receptionist give Jill a receipt?

Mrs Douglas said she honestly didn't know and wouldn't go as far as saying anything about a receipt. She finished by saying she didn't know.

 

14. Is there anything further you wish to add?

Mrs Douglas didn't have anything further to add. She would love to be able to add more but she couldn't and had given an honest account of what she could recall and hope this helps.'

 

80.          On 18 December 2015 Mr Devlin wrote to the claimant to confirm his decision to make a recommendation for her dismissal based on his conclusions on the evidence presented at hearing that, in summary, despite consideration of the traumatic events in her personal life, occupational health report, character references, apology and offer of payment presented in mitigation, her actions constituted gross misconduct and destroyed trust and confidence, in that:

 

•       She failed to follow correct cash handling procedures when handling the monies from the 2014 & 2015 events of £150 (for which she indicated £30 was received by her and could not recall receiving £150) and £600. She had confirmed she had not issued receipts and decided herself how to distribute same whilst not hers to do so. Her actions demonstrated she had failed to follow correct procedures in that she did not report receipt of the monies to or seek management advice on distribution, and had acknowledged this was an error on her part. This action amounted to gross misconduct.

 

•       There was a serious failure by her to account for monies paid to the College based on:

 

-      It being irrefutable Walker Communications rang into College to seek assistance for the 2014 event.

 

-      She could not account for the £90 difference in the amount Walker Communications said was paid and amount she said she received.

 

-      Out of £600 received for the 2015 event she could not verify with receipts her alleged expenditure of £120, Campus Services Administrator had no recollection of the £200 claimed lodged and it could not be traced by the College Finance and Procurement Manager in March 2015 or remainder of the 2015 financial year, nor be substantiated by her witness who saw the claimant hand over an envelope but could not confirm what the contents were nor what they were related to. Nor was there record of the £100 she claimed was placed in the float cash box for the commercial salon to replenish stock and which she had said was not normal practice.

 

•       On the balance of probability she had retained monies for her own personal gain amounting to fraud, it being irrefutable monies were paid by Walker Communications for services provided by the College at the two events, monies were paid to her and she was unable to account for or provide documentary evidence for money lodged or stock items or stock for students.

 

81.          Mr Devlin confirmed the matter would be referred to the Governing Body for consideration in accordance with the Dismissal and Suspension Procedure for Full Time Teachers in Institutions of Further Education and a meeting of the panel scheduled for 20 January 2016 at which the claimant had the right to be accompanied by a Trade Union representative or a work colleague.

 

82.          A conversation thereafter took place between Mr Doran and John Quinn (one of Mr Doran's Co-Directors in the College) about Mr Quinn's intention to represent the claimant at the forthcoming dismissal hearing before members of the Board of Governors. Mr Doran indicated to Mr Quinn that whilst unusual this was a matter for him to decide upon.

 

83.          On 12 January 2016 Mr Doran wrote to the claimant:

 

' RE: PRECAUTIONARY SUSPENSION

 

I write following confirmation from School Management that it is your intention to return to work on Wednesday 13 January 2015 following a period of sickness absence.

 

Whilst it is good to hear that you are fit to return to work, the College has ongoing concerns about you returning to the work environment particularly with regards to you coming into contact with individuals involved in the disciplinary investigation and undertaking the full range of duties including cash handling, whilst the matter of your dismissal is under consideration by the Governing Body.

 

Therefore I am placing you on precautionary suspension with effect from Wednesday 13 January 2016. Please note that this suspension is a neutral act and will continue until the dismissal hearing of the 20 January 2016 has taken place, following which you will be advised of the outcome of the panel deliberations.

 

You shall receive full pay during this precautionary suspension. '

 

84.          The continuation of the claimant's precautionary suspension was not reviewed at any stage thereafter in accordance with Paragraph 10 of the respondent's Suspension Procedure.

 

85.          A further GP report, with the same content as that of 13 November 2015, was issued to the claimant dated 18 January 2016.

 

86.          On 18 January 2016 O'Reilly Stewart Solicitors hand delivered a letter to Mrs Hughes enclosing a submission (together with a paginated bundle of documents and Chronology) on behalf of the claimant for consideration of the Members of the Board of Governors Panel in advance of their meeting and confirmed that the claimant would attend with John Quinn. A reference from Sydney Anderson MLA in relation to the client was forwarded by email on 19 January 2016 for inclusion with the papers previously sent.

 

87.          On 19 January 2016 the respondent advised the claimant that the panel meeting with the Governing Body had been postponed which O'Reilly Stewart Solicitors then queried by email to Mr Sloan given that the matter had been ongoing from September 2015 and detrimental impact on the claimant's health and wellbeing.

 

88.          On 20 January 2016 Mr Sloan was sent an email by Sam Nicholson (Councillor, Armagh Banbridge and Craigavon Borough Council) further to the reference he had provided for the claimant with regard to the pending decision by the SRC Board of Governors and expressed shock at the postponement of that meeting and sought explanation for the delay given the negative effect on the claimant's health. Mr Sloan replied by email on 21 January 2016 setting out that he trusted it would be appreciated this was a matter between the College and claimant and ' College cannot enter into dialogue beyond this however Ms Leeman will be able to update you accordingly.'

 

89.          On 21 January 2016 Mr Sloan wrote to the claimant and confirmed receipt of documentation lodged on 18 January 2016 and that the matter had been referred back to Mr Devlin for consideration and the disciplinary hearing was reconvened to take place on 4 February 2016 in light of the fresh evidence not submitted before, consisting of:

 

A table detailing expenses

A receipt dated 18 March 2015 issued by Salon Services

Email dated 6 November 2015 from Mrs Nesbitt to Staff School HBSS

Draft letter to Carolyn Davison dated 13 November 2015

Email from Elyse Napier dated 19 November 2015

Letter from GP dated 18 January 2016

Undated letter from Councillor Sam Nicholson

Unsigned letter from Barbara Nicholson

And a letter from Sydney Anderson MLA submitted on 18 January

 

90.          On 27 January 2016 O'Reilly Stewart Solicitors wrote to Mr Sloan and confirmed that the claimant would attend the re-convened disciplinary hearing; sought confirmation of all parties who would be in attendance; commented that the Governing Body panel should have met within 10 days of the issue on Mr Devlin's outcome of 18 December 2015; and they would write directly to Mr Devlin with some further commentary 'To ensure that the reconvened disciplinary hearing and any necessary consideration by a panel of the Governing Body is uncontaminated'. By separate letter dated 27 January 2016 O'Reilly Stewart Solicitors confirmed to Mr Devlin that the claimant would attend the re-convened disciplinary hearing and requested that he in addition to the Submission submitted consider:

 

(i)            How Mrs Nesbitt came into possession of the letter from Walker Communications in relation to the 2015 event which the claimant alleges was contained in her personal diary and Mrs Nesbitt would have had to without permission searched the claimant's personal property to obtain it, and requested this matter be investigated with Mrs Nesbitt.

 

(ii)           The inconsistent treatment of a second incident of cash handling processes being compromised, believed by the claimant to involve staff member Marie Louise Devlin, referred to in an email by Mrs Nesbitt to all staff dated 6 November 2015.

 

Mr Devlin was furthermore asked to explain the purpose and content and provide minutes of further discussions of approximately ten minutes at the end of the disciplinary hearing not included in the minutes, when Ms Clarke had re-entered the meeting room and the claimant was not permitted to participate.

 

91.          A further bundle for the claimant made up of documentation already provided on 18 January 2016 with the addition of copy minutes of the Disciplinary hearing on 10 December 2015 and copies of correspondence between the respondent and O'Reilly Stewart Solicitors was provided to the respondent prior to the reconvened disciplinary hearing.

 

92.          By letter dated 29 January 2016 Mr Sloan acknowledged receipt to O'Reilly Stewart of both their letters of 27 January 2016 and confirmed that Mr Devlin supported by Mrs Hughes would be present at the meeting; responded that their assertion as to the timing of the Governing Body meeting was incorrect; and that it was entirely appropriate that all correspondence be sent to Human Resources confirming its role in support and managing the process, not decision making. Finally Mr Sloan suggested information be sought directly from Ms Clarke or UCU, and confirmed the disciplinary meeting had ended when Ms Clarke re-entered the room uninvited and comments were therefore not minuted, that the claimant was not prevented by Mr Devlin or Mrs Hughes from being present and conversation was not initiated by them and that only matters discussed and formally minuted were relied upon.

 

93.          The claimant's twelve page submission provided for reconsideration by Mr Devlin on 4 February 2016 in particular referred under:

 

' Background', to the claimant's

 

•       15 years length of service.

 

' Allegations', to the claimant's

 

•       Belief she attended the 2014 event in a personal capacity, was paid £30 and did not consider she was doing anything wrong or breaching procedure.

 

•       Acknowledgment that the 2015 event was a College Event and denial of a clandestine approach to it referring to discussions with Lynn Bussell and Clara Havern and her line manager's absence on sick leave.

 

•       Account for the £600 received and attached her Expense Account for £296.88 thereof which she had prepared in advance of the first disciplinary meeting but forgotten to provide and was then declined by Mrs Hughes.

 

•       Account that she on 18 March 2015 handed over an envelope to Campus Services containing £200 for lodgement, Cathy Douglas was present and she did not obtain a receipt.

 

•       Account that she retained £100 cash, discussed with Clara Havern, to replenish College salon stock and subsequent attendance at Sally Salon Services in Lurgan on 18 March 2015 where she purchased products for £116.86, for which she attached a manual invoice from Sally Salon Services dated 18 March 2015, towards which she applied £3.12 left over from the £600 and made up the difference of £13.74 from her own monies; had then placed products in the Salon store; that stock on the Salon store was often low; she had on a number of occasions bought products from Sally Salon Services for Student use from her own monies and was aware other Lecturers did so and there were difficulties obtaining stock at the Lurgan Campus.

 

•       Account that she retained receipts for items listed in the Expense Account until the end of term in June 2015.

 

•       Wish that the Sally Salon Services receipt located since the disciplinary hearing be considered as new evidence.

 

•       Acceptance that she did not follow the appropriate cash handling procedure, but that she was not aware of the College Cash Handling Policy and Procedure nor recalled being provided a copy or it being explained to her.

 

•       View in response to allegations put that she had accounted for the sum of £600 albeit did not have vouching documentation; that Cathy Douglas was present when she handed over the envelope with the £200 cash in it; and that she had now accounted for the outstanding sum of £100 with the Sally Salon Services invoice.

 

•       Denial of the conclusion that she had retained monies for her personal gain or actions amounted to fraud and gross misconduct, submitting that she had been honest in her responses to allegations and had provided an accurate account with the expenses account.

 

' Procedural issues'

 

•       That Mrs Hughes was wrong not to accept the Expenses Account which would have assisted Mr Devlin and was of no prejudice as he had not at that stage arrived at a conclusion.

 

•       The claimant was not clear before the disciplinary meeting that allegations related to the 2014 event, Mrs Nesbitt in her report at the disciplinary meeting advised the investigation related only to the 2015 event.

 

•       Mr Devlin made no reference to as per minutes of his meeting that Ms Douglas advised the claimant ' may have said "money for the weekend"' which appeared to have been volunteered unprompted.

 

•       In the interests of fairness and natural justice the claimant should have been provided a copy of the minutes of Mr Devlin's meeting with Ms Douglas and afforded the opportunity to comment before Mr Devlin arrived at his recommendation.

 

•       The claimant had essentially raised a grievance against Mrs Nesbitt by her email of 18 September 2015 copied to Mr Sloan in particular raising the concern that Mrs Nesbitt had already formed a conclusive view that she was guilty of 'fraud' a view the claimant formed when Mrs Nesbitt told her that she had committed fraud.

 

•       The claimant considered Mrs Nesbitt's investigation unfair referring to her email of 18 September 2015 and it clear from Mrs Nesbitt's email to staff of 6 November 2015 that she was referring to the claimant and had concluded that she was guilty, so compromising her position and ability to have a fair disciplinary hearing. Also the claimant had found Mrs Nesbitt aggressive and intimidating throughout the investigatory process and in the disciplinary meeting.

 

•       Minutes of the two investigatory meetings despite repeated requests were not received until 30 September 2015 and not settled until 10 weeks after the initial investigatory meeting when the claimant's memory had faded and the claimant suffering at that time from chronic anxiety and depression. The delay was unfair and placed the claimant at a disadvantage.

 

•       The claimant was concerned that her sudden and immediate suspension was prejudicial and an indication from Human Resources that her dismissal was the only option available to the panel.

 

•       Confirmation from the claimant that:

 

o   She did not handle the College's monies from the 2015 event in an appropriate manner; that it was not within her discretion to remit any payments out of monies due and owing to the College; in particular that she should have had permission and authority in respect of :

 

•       The issue of payment to students.

•       The issue of payments in the sum of £30 to herself.

•       The purchase of any products for use during the event.

•       The purchase of any goods or provisions for staff during the event.

•       Her re-imbursement for fuel or car-parking.

 

o   That the College has a Cash Handling policy and procedure that she did not follow but had familiarised herself with and wished to undertake training in.

 

o   Now she was aware of the policy and procedure there would be no repeat breaches and had learnt from her errors and poor judgement.

 

' Mitigation'

 

•       The difficult circumstances the claimant had found herself in over the past number of years which the claimant believed could account for and give understanding to her poor judgement in respect of which the claimant referred to the Occupational Health Report of 16 November 2015 and GP report of 18 January 2016.

 

•       At the time surrounding the event the claimant was having some considerable personal difficulties:

 

o   The anniversary of her partner's death.

o   Finalising her divorce after 5 years difficult negotiations.

o   Moving house to live with her parents due to post traumatic stress and severe anxiety.

o   A traumatic breast cancer scare.

o   Regular A & E visits for 8 year old daughter with chronic asthma.

o   Her Fibromyalgia and its effects, referring to a discussion with her GP's advice that sufferers of Fibromyalgia often encounter difficulties relating to memory and concentration known as 'fibro-fog' and can impact mental processes and GP considered that this may explain in part her error of judgement.

 

•       As per the Occupational Health report:

 

o   She had been suffering stress due to a heavy workload.

o   She was struggling with discipline issues with an SSP class.

o   Her hours of work were exhausting

o   Her personal and professional demands resulted in severe depression and anxiety.

o   Her relationship with Mrs Nesbitt was strained and she felt bullied and harassed by her on return to work after her partner's death.

 

'Conclusion' , the claimant,

 

•       Never intended to cause difficulties but sought to look after and protect the student's best wishes.

•       Had an unblemished disciplinary record.

•       This was a 'one-off'.

•       Had learnt from her mistake and it would not happen again.

•       If helpful would pay money to the College and undertake training on Cash Handling.

•       Was willing to accept restrictions on her employment.

•       Was willing to attempt to resolve including via mediation any problems if existing with any of her colleagues.

 

94.          On 4 February 2016 the reconvened disciplinary hearing took place with Mr Devlin as chair, Mrs Hughes in attendance as Human Resources Representative, the claimant, Dr Paul Hamilton as the claimant's UCU Trade Union representative and Sandra Barry as note taker and minutes taken in respect thereof agreed. The claimant read from her submission and matter raised therein discussed, the minutes in particular record:

 

•       At Page 2 'Mrs Hughes referred to ... where she stated that she had approached Ms Bussell for products for the event and asked Ms Leeman why she did not follow through with this enquiry. Ms Leeman replied that the students wanted to use their own products as they were confident in using their own products.' Mrs Hughes then enquired about implications of students using their own products and the use of disclaimer forms discussed.

 

•       Pages 2 & 3 Mr Devlin put to the claimant that the stock ordered for Lurgan ' stands proportionate to the other campuses. Ms Leeman replied that the reality is that the stock runs out...'

 

•       At Page 4, Mr Hughes put to the claimant a difference in her account of the lodgement of the £200 ' She had said in the meeting of 10 December 2015 that she could not remember getting a receipt and now in her submission she was saying she did not get a receipt. Mrs Hughes asked which account was correct. Ms Leeman replied that she could not remember.

 

Mr Devlin asked if she had received receipts in the past when lodging money. Ms Leeman replied that Lurgan was "laid back in a positive way". She indicated that sometimes you cannot get a receipt generated at the time and would usually call back later to get the receipt. Mr Devlin asked if she had gone back that time to get a receipt. Ms Leeman replied that she "could not remember".'

 

•       At Page 5 ' Mrs Hughes enquired about the products bought. Ms Leeman replied that they were the products she knew she did not have for class that day. Ms Leeman said no she could not remember possibly later that week. Ms Hughes asked if an order had been put through for those items. Ms Leeman replied the order was put through but was not processed or approved. Ms Leeman was asked if she had discussed this with Ms Bussell. To clarify, Ms Hughes asked if she had purchased these products because they were low on stock that day. Ms Leeman replied that she was not sure.'

 

•       At Page 6 ' Mrs Hughes referred back to the Sally Salon Services Receipt and Ms Leeman's comment that she found the receipt in a box in her car. She asked Ms Leeman had she not gone through this box before the meeting on 10 December 2015. Ms Leeman said she went through her paperwork at the end of the year. Mrs Hughes asked when Ms Leeman did this. Ms Leeman replied June. To clarify Mrs Hughes asked Ms Leeman if she went through her paperwork in June. Ms Leeman replied yes but not the boxes, they were in her house and she did not need to. She added that she had moved house as well, she had a lot of preparatory notes that she did not get through, and as a Lecturer she said she would have mountains of paperwork. Mrs Hughes asked when the boxes from her car boot were moved to her house, Ms Leeman replied June.'

•       At Page 9 and 10 'Mrs Hughes indicated that the notes to which she referred did reference the March 2014 event. Also that the letter sent to Ms Leeman from Mr Devlin ... inviting her to the disciplinary hearing refers to both ... events.'

 

•       Page 10 in response to the claimant's comment that Mr Devlin should have provided her the minutes of the meeting with Ms Douglas and opportunity to comment 'Mrs Hughes asked ... what comments did she wish to make .... Ms Leeman said that Mrs Douglas had not been asked anything but had given the information freely'.

 

•       Page 11 'Dr Hamilton stated if he had investigated this issue he would have taken into account Ms Leeman's previous experience. Also that there were no money handling procedures for this type of event so this did fall outside of procedures, he felt there were lots of mitigating circumstances that should be taken into account such as Ms Leeman's personal circumstances: her health and unblemished record. He said he would have likely found not to be dismissal.'

 

•       Page 12, the claimant on discussing her belief that her memory had faded and she was disadvantaged by the delay in providing investigatory minutes which she ultimately signed as accurate ' The final version was sent with the letter to say I was not happy ...... Mrs Hughes asked if there was anything Ms Leeman wanted to refer to with regards to these minutes for the panel's consideration now. Ms Leeman said no.'

 

•       At Page 12 ' Ms Leeman said she had discussed the matter regarding the investigation outcome with her GP who told her that sufferers of fibromyalgia can suffer memory loss called memory fog.' Also that her ' workload was impacting on her home life and she was suffering from severe depression and anxiety.'

 

•       At Page 13 'Mr Devlin referred Ms Leeman to Page 11 of her submission, Mitigation, and sought clarification on the time periods of these incidents she had referred to. Ms Leeman confirmed the following dates:

 

•       Anniversary of her partner's death- April 2013

•       Divorce was finalised - June 2015

•       Moved house - March 2015

•       Daughter' Illness -September 2015, asthma attack lasting 2 days, cannot remember if any in March

•       Cancer Scare- December 2014 she discovered a lump and was told it was cancer.

 

Ms Leeman was asked if she had to undergo any treatment for the cancer, she replied that she had undergone further investigation and it showed it was something else not cancer.

 

Ms Leeman then drew the panel's attention to pages 20 and 21 of her submission [the GP report dated 18 January 2016] and said she had discussed things with her GP, as this was ongoing she had seen her GP quite a bit due to anxiety, depression and post traumatic stress since seeing her partner dying and has been on medication for this.

 

Mr Devlin said that the GP's statement makes no reference to fibromyalgia and brain fog. Ms Leeman replied she had spoken to her GP about this but it was not in the letter. Dr Hamilton queried if Ms Leeman could get a letter from her GP to support this. Dr Hamilton was advised that Ms Leeman could obtain further information in support of her case if she wanted or the College could obtain this on her behalf if she wished to give her consent. Ms Leeman said the GP did not put it in the letter as she had said it was such a broad subject.

 

Mrs Hughes indicated however that Ms Leeman had referred to it and particularly made a comment that her GP considers that the fibro fog may in part explain her error of judgement however the medical evidence was not supporting this statement. Ms Leeman responded by saying it was there as part of her mitigating circumstances. ' The claimant in response to Mrs Hughes enquiry then confirmed she first spoke with her GP about brain fog in November and that she had sent the GP letter to Mr Devlin after the hearing, the original GP letter was dated 13 November 2015, which she misplaced, and was re-issued at her request and re-dated by the GP to January 2016. Furthermore, when asked if she was saying she was suffering memory loss during her meetings with Mrs Nesbitt or at the time of the events, the claimant said she could have been but could not recall. Mrs Hughes indicated that at these times there was no record or indication that the claimant was suffering from fibromyalgia at the time.

 

•       At Page 14 ' Mrs Hughes advised Ms Leeman that to advise that she had an unblemished record was incorrect as she had been issued with a formal counselling letter in July 2015 ... Ms Leeman said that she was not aware that this formed part of the disciplinary process.'

 

•       At page 16 '... Ms Leeman said her colleague was also queried on money handling issues and asked why she was not being treated the same as herself. Mr Devlin said he could not discuss another matter at this point regarding another member of staff and Ms Leeman said she understood.'

 

95.          On 16 February 2016 Mr Devlin wrote to Laura Skelly, Store Manager of Sally Salon Services in High Street Lurgan to enquire about the manual receipt 023537 obtained by the claimant, having been directed by Sally Salon Service's head office to contact the store directly because they did not hold records relating to his enquiry. Mr Devlin sought :

 

(1)           A copy of the original receipt retained in store.

 

(2)           Confirmation of the Lurgan Store number.

 

(3)           The date on which the receipt was issued.

 

(4)           The date of receipts issued immediately preceding and after the receipt.

 

(5)           Whether the customer trade card number thereon was the claimant's.

 

(6)           If the customer trade number was for another customer and if so how it could be used in that transaction.

 

(7)           If the number was not a trade card number what it was and why it was used.

 

(8)           The circumstances in which a manual receipt is issued.

 

(9)           Why a manual rather than til receipt was issued for this purchase?

 

(10)        Whether two of the products listed but not appearing on their website were available for sale in the Lurgan store or if discontinued products when they were withdrawn.

 

(11)        Whether Shelly O'Neill the staff member who signed the form was on duty in the store on 18 March 2015.

 

96.          On or around 17 February 2016 the claimant forwarded for Mr Devlin's attention the email she had received from Ms Napier dated on 19 November 2015 and original Sally Salon Services receipt dated 18 March 2015.

 

97.          On 17 February 2016 Mr Nicholson emailed Mr Doran (with a copy sent to Danny Kennedy MLA) and raised concern over the disciplinary process in which the claimant was involved and affect upon her, it already having taken seven months and suggested a meeting with Mr Doran, Danny Kennedy MLA, the claimant and her legal representative to discuss the matter. Mr Doran replied on 18 February 2016 that the claimant's ' case is the subject of an internal disciplinary process and will be addressed in accordance with the college's disciplinary policy. I am sure you will recognise the need for due process to be followed and must therefore respectfully decline your request for a meeting...'

 

98.          On 23 February 2016 the respondent received a reply to their enquiry from Shelly O'Neill from Sally Salon Services as follows:

 

'To whom it may concern

 

Yes off [sic] course we can help but unfortunately that document is not with us anymore as we only keep these documents for 6 months. Laura Skelly was the manager then but she left in November time.

 

4344 is the store number for Lurgan.

 

If the manual receipt was wrote on the 18.03.15 that's the date it would have been issued.

 

Unfortunately we can't give you the dates off theses [sic] receipts for 023536 and 023538 as we do not keep these copies anymore the only people that would have a record off [sic] these would be the customers themselves.

 

Yes the trade card number 81004144192 is a Jill Leeman.

 

There can be a number of reasons why manual receipts are written- on occasion are [sic] tills can break down and therefore we can't print receipts threw [sic] the till point and we would then give a written receipt. A manual receipt can be written if the customer has lost or forgotten to take their receipt with them and need's [sic] it for their accounts so in this case we find out exactly what they purchased from head office and do a written receipt from the store, but the computers can only go back a certain time so if it's over a certain date or head office cannot find these details we ourselves can't do a manual receipt. Manual receipts can also be written if the store has run out of till roll. If the electricity goes out or we have engineers working on the tills we can't print out a receipt we would then write a manual receipt for the things they purchase that day.

 

This is a very long time ago so I can't say why a manual receipt was written it could off [sic] been for any of the above.

 

Often discounted products will not appear on the website but stores will still have stock off [sic] them. We stock both these products and have done for years. I have enclosed pictures.

 

Yes I am Shelly O'Neill and I was working that day the only reason I remember is because I regularly take time off from the 27 ^th March as that is my birthday week. And I was the full time assistant at that time so I regularly work weekdays. I have been with the company for over ten years and manual receipts are done in such occasions as I listed above and in my whole time working here I have written a lot of them for customer records and for errors with are [sic] tills when we can't give til receipts.

 

I hope this has helped with your query and if you need anything more please feel free to contact us.

 

Store manager

Shelly O'Neill'

 

99.          On 24 February 2016 Mr Sloan emailed the claimant referring to public representatives who had contacted Mr Doran regarding the ongoing disciplinary process with representations on her behalf, specifically Danny Kennedy, Sam Nicholson and Sydney Anderson and which Mr Doran had turned down as inappropriate and because due process must be followed. Mr Sloan requested on the assumption the representations were at her request, that the claimant instruct these representatives to refrain from contacting the College while the internal process was ongoing and pointed out these could be seen as an attempt to interfere with an internal disciplinary process and to apply inappropriate pressure to officials within the college.

 

100.       On 25 February 2016 Mrs Hughes emailed Jane Lee in Sally Salon Services' Accounts Department (after being directed back to head office by the Lurgan store when she sought further clarification from them). Mrs Hughes referred to their prior telephone conversation during which Ms Lee ' had indicated that no purchase for the amount specified on the manual receipt (£116.86) were made against the trade card number at that time i.e. March 2015. I would be grateful if you could confirm whether purchases for that amount were made against that trade card number at any time from March 2015 to present day.' Mrs Hughes also sought a copy of the receipt which was indicated would be held in archives and the date of issue on the invoices immediately preceding and proceeding it.

 

101.       Mrs Hughes emailed Sally Salon Services on 2 March 2016 seeking a response to her earlier email. Mrs Hughes made multiple further telephone calls and sent email correspondence to Sally Salon Service on 22, 30 March, 4, 6, 8, 12, 13, 15, 27, 28 April, 3, 4, 5 and 6 May 2016.

 

102.       In the interim on 4 March 2016 O'Reilly Stewart Solicitors sought an update further to the reconvened disciplinary hearing. In the absence of a reply they wrote again on 4 April 2016. On 6 April 2016 Mrs Hughes replied that investigations were ongoing into the evidence submitted at the most recent disciplinary hearing. O'Reilly Stewart on 13 April 2016 asked that the respondent specify the 'new evidence' referred to including from whom Mr Devlin had sought further information; what had been sought noting no request had been made to the claimant for clarification or assistance, the date it was requested, when a response was expected and that they give a likely timeframe for an outcome. Mrs Hughes replied on 20 April 2016 that the new evidence referred to related to the manual receipt submitted and given its potential relevance Mr Devlin was making appropriate enquiries relating to it. Mrs Hughes stated it may be appropriate to raise the other queries put once Mr Devlin had issued his decision in the matter, gave the assurance that the College had been very assiduous in following the matter up and Mr Devlin hopeful of being in a position to finalise his report in the coming weeks. On 26 April 2016 O'Reilly Stewart replied asking what further information was being sought in relation to the receipt which they considered to be self- explanatory and raised concern at Mr Devlin not having concluded his deliberations some twelve weeks following the hearing on 4 February 2016 and that the matter had been ongoing for 8 months.

 

103.       Ultimately Mrs Hughes sent an email on 6 May 2016 to Roshtha Sadiq in SSE's Legal Department regarding their telephone conversation on 5 May:

 

'Following on from our telephone conversation yesterday I thought it would be helpful to confirm our conversation.

 

You had indicated that following investigation into the query raised by the College the following findings were made:

 

•       The manual receipt is a Sally's receipt written by a member of Sally's staff.

 

•       Unable to confirm the date the receipt was written. The Store assistant could not be exact but thinks it was in and around the time of 18 March 2015.

 

•       Unable to confirm if the items were purchased on 18 March 2015 and cannot guarantee if the items were all purchased on the same date.

 

•       Unable to find any items listed on the receipt against the Trade Card for Ms Leeman.

 

•       Ms Leeman came into the Sally's Lurgan store indicating she had lost her original receipt and was looking for another receipt. Ms Leeman advised the store assistant of the items she had purchased and the store assistant wrote these items on the receipt even though this transaction could not be verified against the store systems. The store assistant took this action in good faith as Ms Leeman is a regular customer in the store.

 

•       There is nothing on Ms Leeman's trade card that relates to this transaction.

 

•       An employee of Sally's spoke to Ms Leeman at the early stages of the query seeking confirmation that the trade card number on the receipt was her card.

 

•       Ms Leeman indicated she paid in cash.

 

I would be grateful if you could confirm this is an accurate reflection of our conversation or if I have missed anything out or not reflected any aspect not correctly please amend accordingly....'

 

On 9 May 2016 Ms Sadiq confirmed to Mrs Hughes by email that the points made were a true reflection of their telephone conversation and nothing more was to be added.

104.       On 18 May 2016 Mr Devlin wrote to the claimant following his assessment of the new information submitted by her and confirmed his recommendation that the matter be remitted back to the Governing Body Committee for consideration of her dismissal from the College. Mr Devlin in his enclosed report (of nineteen pages and eight appendices including an advertisement for the 2014 event referring to ' Head and Neck Massages from Lurgan Health & Beauty College', investigations made with Sally Salon Services regarding the manual receipt, the claimant's 2014/15 timetable, formal counselling letter, a timeline of events and minutes of the re-convened disciplinary hearing) set out his findings on the new information. Mr Devlin concluded, in summary, that:

 

•       The spreadsheet did not change his original findings as there was no valid documentation such as receipts to account for or verify this expenditure.

 

•       No weight could be attached to the manual receipt as its validity was questionable the late submission of which required them to validate it directly with the Company's Head Office stating 'the evidence from Head Office demonstrates they were able to confirm the date the receipt was written; they were unable to confirm if the items were purchased on 18 March 2015; they cannot guarantee if the items were all purchased on the same date; and the account of the engagement between Ms Leeman and the store assistant allegedly on the 18 March 2015 was not as described by Ms Leeman.

 

Ms Leeman stated that she can now account for the £100 petty cash however based on the information above from Sally's Head Office this assertion cannot be substantiated. Also this receipt does not provide the evidence that these goods were returned to the College Salon store as indicated by Ms Leeman. By her own admission no one saw Ms Leeman bring these items into the College and there was no evidence of these items being placed in the Salon store.'

 

•       The position regarding the lodgement of £200 cash with campus services remained unchanged from his original findings in that there was no record of these monies being paid to the College.

 

•       The position with regards to the £150 for the 2014 event remained unchanged in that the £150 cash was given to the claimant and none of it could be accounted for.

 

•       That not all of the mitigating factors submitted relate to the timing of the promotional events and he was not able to substantiate how they may have mitigated the claimant's actions.

 

•       Procedural issues raised by the claimant did not provide evidence of any wrongdoing or unfairness in the investigation or the conclusion reached.

 

•       The facts remained that the claimant received a total of £750 for the two events; she did not seek advice from College about payment for such events; she took it upon herself to enter discussions with Walker Communications and arrange for cash payments to be made directly to her; she did not advise College management about the payments.

 

•       It was not College policy to seek reimbursement from a company for participation in such an event, nor to reimburse students.

 

•       Only £180 paid to students was able to be accounted for and verified leaving £570 cash (£150 for the 2014 event, £420 for the 2015 event) of the £750 paid, unaccounted for, there being no verifiable evidence of any of these monies being paid into the College account or towards the purchase of products as put by the claimant.

 

105.       In correspondence thereafter O'Reilly Stewart confirmed the claimant's intention to attend the meeting of the Governing Body's Committee and sought confirmation as to the members of the committee and on 30 May 2016 put that Mr Doran was conflicted and should recuse himself as a member of the Governing Body Committee stating 'We understand that Mr Doran has discussed this matter with a number of individuals including John Quinn, Sydney Anderson MLA, Sam Nicholson and Sylvia McRoberts, one of the original members of the Governing Body Committee. There is therefore significant risk that Mr Doran may have a predetermined view before the Committee hears our client's representations on 9 June 2016'. Mr Sloan's proposed attendance was also queried. Finally it was requested that the claimant be permitted legal representation given that if dismissed it would have a devastating impact upon her future ability to work within her chosen profession. Mrs Hughes replied on 1 June 2016 rejecting that Mr Doran was conflicted setting out:

 

'It is not agreed that Mr Doran is conflicted in this matter and therefore he will not recuse himself. Mr Quinn a former director of the College, at one point considered acting as Ms Leeman's representative. Mr Quinn discussed this with Mr Doran, who confirmed that it was a matter for Mr Quinn. Mr Doran did not discuss the facts of the case with Mr Quinn. Mr Anderson, Mr Nicholson and Ms McRoberts have approached Mr Doran to attempt to discuss the case. On each occasion Mr Doran has impressed on the individual the fact that the matter is subject to internal proceedings and that due process must be allowed to take place. Such was the College's alarm at the number of attempts on behalf of Ms Leeman to contact Mr Doran, apparently to influence him, that an email had to be sent to your client on 24 February 2016 to ask her to desist from having these approaches made on her behalf. We note this appears to have been ignored, with the most recent contact being made by Sylvia McRoberts (one of the original panel members whose non-membership of the newly convened panel you query in your paragraph 2). Mr Doran did not initiate contact with Mr Anderson, Mr Nicholson or Ms McRoberts. If these individuals have been asked to speak to him about the case, it suggests there has been a concerted (but failed) effort to compromise him.'

 

Mrs Hughes furthermore confirmed that Mr Sloan would attend to advise the panel on procedure with no decision making role which she could not do having assisted on process with Mr Devlin who would present his report and recommendations to the panel. Also, Mrs Hughes confirmed that they did not consider the circumstances were such that the claimant had a right to legal representation at the hearing. In response on 2 June 2016 O'Reilly Stewart reserved their opposition regarding Mr Doran pending the decision of the Committee of the Governing Body and the request for legal representation. Matters of delay were also raised but rejected by the respondent as having been attributable to them.

 

106.       On 6 June 2016 submissions for the claimant were delivered to the respondent for consideration of the Committee of the Governing Body (9 pages) to be considered together with the claimant's original submissions.

 

107.       The hearing before the Committee of the Governing Body took place on 9 June 2016 chaired by Mr A Saunders, the claimant was accompanied by Dr Hamilton. Agreed minutes thereof were included in the agreed bundle of documentation. Further documentation before the panel included in particular:

 

•       A letter from the Vice Principal of Craigavon Senior High School dated 31 May 2016 setting out that the [SPP] class the claimant had was at times a very challenging class and ' the girl who made the initial complaint she acknowledged that Mrs Leeman had neither assaulted her nor pulled her hair in an aggressive manner';

 

•       An email from Elysie Napier dated 20 May 2016 explaining the 2014 event was organised at relatively short notice and the claimant had been prepared to provide the head and neck massage service for the 2014 event rather than leave them with no massage supplier when no students were available to take part and that the only mention of Lurgan College was on posters and boards, which it had been too late to re-print at that stage;

 

•       A receipt for cash takings of £22 on 19 March 2015 issued by Donna Coleman from Lurgan Reception Cash;

 

•       An updated GP report dated 6 June 2016 confirming that the claimant had ' consulted several times since September 2015 regarding the physical or psychological affects of stress, manifested as flare up of fibromyalgic type symptoms ...'.

 

108.       The panel heard from Mr Devlin who presented the case for recommendation of the claimant's dismissal. Following panel questions the Claimant made a statement and the panel then asked further questions. Queries were made by panel members in particular including as to staff training into handling money; the reference to Lurgan Hair and Beauty College rather than SRC in the leaflet; the stock box and its location, following which minutes record 'In response to a query AMH stated that they did not see an inventory record but the technician concerned indicated that she would have a good knowledge of stock levels', whether there was further medical evidence that the claimant was suffering from fibromyalgia, following which ' GD referred to the GP letter of 18 January 2016 as the only reference to fibromyalgia'; if there was evidence of the claimant lodging any other monies between 16 and 20 March 2015 whereupon ' GD replied that JL had lodged monies on several occasions before and after that week and had lodged money on 19 March where a receipt for £22 was issued to JL'. No specific discussion as to the suggestion that the claimant had gone back to the Sally Salon Services store and requested a duplicate receipt took place. The claimant raised ' in her view:

 

•       AMH went beyond what was required of her in conducting this investigation

 

•       Did whatever it took and went to significant and substantial lengths to disprove the credibility of the handwritten receipt

 

•       Exaggerated the evidence to implicate me and acted with a pre-determined outcome to dismiss me'.

 

109.       As per Mr Devlin's evidence the Committee of the Governing Body were concerned at inconsistencies and found the claimant unconvincing. The Committee ultimately determined and notified the claimant by letter dated 14 June 2016 of their decision from the evidence presented at the hearing that the claimant had seriously breached cash handling procedures, failed to account for money paid to the College, and retained for personal use money paid by a third party to the College individually and cumulatively representing gross misconduct and agreed with Mr Devlin's recommendation that the claimant should be dismissed and that their findings had been ratified following further consideration at a meeting on 14 June 2016 of the full Governing Body and determined she should be dismissed from the College. The claimant was advised of her right of appeal to an Independent Appeal Panel convened by the Labour Relations Agency.

 

110.       By letter dated 1 July 2016 O'Reilly Stewart Solicitors set out the claimant's grounds of appeal.

 

111.       An Independent Appeal hearing was convened at the Labour Relations Agency on 19 October 2016. The appeal panel was made up of John Lyttle as Chairman, Paul Smyth nominated by the employer's side and Monica Goligher nominated by the employee's side. The claimant's request to be allowed legal representation or otherwise to be accompanied by her sister for moral support at the appeal hearing was refused by the respondent and the claimant was very upset at the prospect of being at the hearing alone faced with five senior managers present for the respondent. Ultimately after considerable negotiations on the morning of the appeal hearing agreement was reached for the respondent to reduce its number of proposed representatives in attendance at the hearing from five to three. The claimant represented herself at the hearing in the absence of being accompanied by a work colleague or Trade Union Representative. A written submission was submitted on behalf of the claimant in advance of the hearing. Grounds of appeal put to the panel were in summary:-

 

•       Dismissal was too harsh.

 

•       The investigatory and disciplinary process was procedurally unfair due to:

 

(i)      Delay from alleged incidents to investigation.

 

(ii)     Gross delay in the disciplinary process.

 

(iii)   Biased investigation and disciplinary process tainted by unfairness.

 

(iv)   Mr Doran ought to have recused himself.

 

(v)     Mr Sloan ought not to have been in attendance on 9 June 2016.

 

(vi)   Procedural unfairness in denial of accompaniment of claimant by legal advisers to disciplinary meeting.

 

•       No rationale given by Committee for its decision nor detail as to mitigating factors considered and weight applied.

 

•       Unclear whether any weight was given to effect of delay on claimant's ability to present her case.

 

•       No account taken that event insured by college.

 

•       No or insufficient weight given to lack of training in cash handling procedures and that allegations outside scope of policy in place.

 

•       No or improper consideration of long service, seniority and clear disciplinary record.

 

•       No or inadequate consideration of personal and health issues at time and effect on judgement.

 

•       No or inadequate consideration submissions and documentation lodged for the disciplinary hearing.

 

•       No grounds upon which could reasonably have arrived at a finding of fraud.

 

•       The length of the meetings on 4 February and 9 June 2016 given the claimant's medical condition.

 

112.       A written submission was presented and read out by Mr Devlin. Included therein:

 

•       At Page 8, in response to the claimant's appeal point that there were no grounds from which the Committee could have reasonably arrived at a finding of fraud reference was made therein for the first time to the Committee having ' referred to the Employee Standards Policy which requires employees to "use the public funds entrusted to you in accordance with College policies and procedures ensuring value for money; and remain impartial and honest in your conduct of your official business".' The Employee Standards Policy was not previously referred to in the disciplinary proceedings against the claimant and was not adduced in evidence at the substantive hearing of this case.

 

•       In relation to mitigating circumstances to be taken into explanation for her poor judgement at Page 22, Mr Devlin set out 'There is no question that Ms Leeman had experienced some difficult and traumatic events in her life over the last three years, however I would question the validity of using such circumstances by way of mitigation' going on to cite the claimant's ability to maintain full attendance at work with limited periods of absence and to perform every day activities and manage the successful and busy 2015 event.

 

•       At Page 23, Mr Devlin confirmed that the claimant had not provided any further evidence following on from mention by the claimant of sufferers of fibromyalgia often encountering difficulties relating to memory and concentration, known as fibro-fog, that can impact on mental processes.

 

•       At Page 24, Mr Devlin stated that the Occupational Health report submitted in advance of the disciplinary hearing on 10 December 2015 ' was not referred to as mitigation at this hearing, rather it was to confirm that Ms Leeman was suffering low mood, anxiety and depression.'

 

•       At Page 25, that it was incorrect that the claimant had an unblemished record ' as she had been issued with a formal counselling letter following this incident with the SSP student'.

 

•       At Page 28 'I considered carefully the mitigating factors submitted by Ms Leeman and have some sympathy for the circumstances in which Ms Leeman found herself. However not all of these factors relate to the timing of the promotional events nor was I able to substantiate how these may mitigate Ms Leeman's actions.'

 

113.       Minutes of the Independent Appeal hearing were not adduced in evidence, nor evidence presented as to the appeal panel's deliberations.

 

114.       In its report dated 2 November 2016 the Independent Appeal Panel upheld by majority the respondent's decision to dismiss. At a meeting on 16 November 2016 the full Governing Body considered and accepted the Independent Appeal Panel's decision to uphold the claimant's dismissal.

 

115.       The claimant was notified of the decision by letter dated 17 November 2016 to terminate her employment summarily by reason of gross misconduct based on the respondent's conclusion that on the balance of probability she had:-

 

•       Seriously breached cash handling procedures;

 

•       Failed to account for money paid to the college;

 

•       Retained for personal use money paid by a third party to the College for services provided by the College, such action amounting to fraud.

 

116.       The claimant presented her claim to the Office of the Tribunals on the 16 February 2017.

 

117.       No evidence was adduced or submissions made by either party at the substantive hearing of this case in respect of differential treatment by the respondent of other staff members for breach of cash handling procedures.

 

LAW RELEVANT TO LIABILITY

 

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

 

118.       Article 130(1) ERO provides that,

 

'In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

 

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

 

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

 

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

 

119.       Under Article 130(4) ERO,

 

'where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case.'

 

120.       Under Article 130A(2) ERO (subject to Article 130A (1) where a dismissal may be automatically unfair for failure to complete the minimum statutory dismissal procedures) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

124.       The band of reasonable responses test applies not just to the decision to dismiss but also to the procedure followed by the employer, in misconduct cases this includes the investigation, findings and conclusions ( J Sainsbury v Hitt [2003] ICR111). An employer must carry out a reasonable investigation. The degree of investigation will depend on the seriousness of the allegation and higher degree of investigation may be required where the employee's integrity is in question or dismissal could end their future career in their chosen profession. The English Court of Appeal accepted in Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, that the severity of the consequences to the employee of a finding of guilt may be a factor in determining whether the thoroughness of the investigation justified dismissal. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

'Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite. In A v B the EAT said this:-

 

"Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."'

 

125.       In Chamberlain Vinyl Products Ltd v Patel EAT/796/94 the employer was considered under a duty to investigate whether an employee's depressive illness might have affected his behaviour after depression was mentioned by the employee in mitigation of his misconduct. The employer had not sought sufficient information from the employee's doctor before deciding to dismiss, the investigation had concluded prematurely and the dismissal was found unfair. The EAT held that whilst in most misconduct cases, an employer could confine his investigation to the question of guilt or innocence and would hear the employee's explanation in mitigation, a failure to investigate grounds put forward by an employee in mitigation of misconduct may render a dismissal unfair where such investigation is necessary to put the misconduct in its proper context.

 

126.       A reasonable employer should have regard to the gravity of the consequences when determining the nature and scope of an appropriate investigation, relevant circumstances may include the time it will take, expense involved, and consequences for the employee if dismissed ( Millar v William Hill Organisation Ltd (UKEAT/0336/12/SM). It is not for a tribunal to decide what investigations would have been appropriate in light of evidence heard at hearing but to ask was further investigation required to satisfy the requirements of fairness .

 

127.       In Bowater V North West London Hospitals NHS Trust [2011] EWCA Civ 63 the Court of Appeal reiterated that the tribunal must not substitute its own view for that of the employer, the test to be applied is whether the decision to dismiss was within the band of reasonable responses open to a reasonable employer.

 

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

 

129.       Harvey on Industrial Relations and Employment Law deals with Misconduct at Paragraphs 1351- 1535.02 in particular; Reasonable Investigation including the importance of a proper investigation as an essential procedural safeguard at Paragraphs 1482 - 1484; Suspension at Paragraphs 1490 - 1491.01; Making proper inquiries at Paragraphs 1492 - 1500; and Was dismissal a fair sanction at Paragraph 1534 - 1651.

 

130.       Harvey in particular notes at paragraph:

 

[1401] Although a clear set of rules is desirable, it does not follow that a dismissal will be unfair if no specific rules can be pointed to by the employer. Inevitably certain acts of misconduct are so well known that there is hardly any need for them to be spelt out ...

 

[1482] The investigative process is important for three reasons in particular:

-”     it enables the employer to discover the relevant facts to enable him to reach a decision as to whether or not an offence has been committed;

 

-”     if properly conducted, it secures fairness to the employee by providing him with an opportunity to respond to the allegations made and, where relevant, raise any substantive defence(s); and

 

-”     even if misconduct is established, it provides an opportunity for any factors to be put forward which might mitigate the offence, and affect the appropriate sanction.

 

[1482.01] Employee defences  Usually the  Burchell principles apply to the charges against the employee, but they may also involve reasonable investigation of any substantive defence or defences raised by him. However, the requirement remains only 'reasonable' investigation and in a complex case the question is whether the employer acted fairly overall. This point was considered directly in  Shrestha v Genesis Housing Association Ltd  [2015] EWCA Civ 94 ,  [2015] IRLR 399 ..................It was accepted that  Burchell does indeed apply to investigating defences, but not necessarily individually.

 

[1483] Mitigating factors  The need for the employer to be aware of any mitigating or extenuating circumstances has often been emphasised. As Browne-Wilkinson J commented in  Sillifant v Powell Duffryn Timber Ltd  [1983] IRLR 91 , giving judgment for the EAT, it will be a very rare case where an employer can reasonably take the view that there could be no explanation or mitigation which would cause him to alter his decision to dismiss....

 

Moreover, whilst in general it will not be necessary to do more than permit the employee to give any relevant explanation or justification, exceptionally it will be necessary for the employer to go further and investigate the circumstances relating to the mitigation. So in  Chamberlain Vinyl Products Ltd v Patel  [1996] ICR 113 , the EAT (Smith J presiding) held that a tribunal was entitled to conclude that an employer had acted unreasonably in failing to explore more fully the employee's claim that his misconduct had been caused by a psychiatric illness.

 

[1484] These cases demonstrate that a failure to comply with the essential standards of fairness will almost inevitably render a dismissal unfair. The position is more problematic where the failings relate to more specific procedural requirements which, whilst beneficial to the employee, are not necessarily fundamental to the notion of natural justice itself.

 

[1490] In  East Berkshire Health Authority v Matadeen  [1992] IRLR 336 ,  [1992] ICR 723 , the EAT (Wood J presiding) accepted that suspension itself was a stigma and that good industrial relations' practice did not require it in every case......

[1490.01] Another way of expressing these sentiments is that, in law, suspension is  not a 'neutral act'. The argument that it is has sometimes been maintained by the employer, on the basis that it implies neither guilt nor innocence, but this was specifically disapproved by the Court of Appeal in  Mezey v South West London & St George's Mental Health NHS Trust  [2007] EWCA Civ 106 ,  [2007] IRLR 244  where Sedley LJ (with the agreement of the other judges) said:

 

''[Counsel for the employer] ..... contends that a suspension is ..... "a neutral act preserving the employment relationship".

 

I venture to disagree, at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean that it cannot be done, but it is not a neutral act.''

The suspension must therefore be justified on the facts of the case.....

 

[1491.01] One particular problem here has been arguably the over-readiness of certain employers (particularly in the public sector, including the medical area and, as in  Agoreyo above, the education area) to resort to suspension as soon as allegations have been made against an employee, and then to allow that suspension to continue for a long period. While there may be cases where this is justified on the facts, the Court of Appeal in  Crawford v Suffolk Mental Health Partnership NHS Trust  [2012] IRLR 402 , CA  have given a significant warning against bad practice in this area ...... As Lady Justice Hale, as she was, pointed out in  Gogay v Herfordshire County Council  [2000] IRLR 703 , even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. ..... Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.''

 

[1534] When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer ........ The position was stated most succinctly by Phillips J giving judgment for the EAT in the  Trust Houses Forte case:

 

''It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible."

 

[1535] Consequently there is an area of discretion with which management may decide on a range of penalties, all of which might be considered reasonable. It is not for the tribunal to ask whether a lesser sanction would have been reasonable, but whether or not dismissal was reasonable: see the Court of Appeal decision in  British Leyland v Swift  [1981] IRLR 91 , more recently applied by the CA in  Securicor Ltd v Smith  [1989] IRLR 356  (which concerned an alleged inconsistency in treatment between two employees). But this discretion is not untrammelled, and dismissal may still be too harsh a sanction for an act of misconduct.

 

[1535.01] .... There are a whole range of potential factors which might make a dismissal unfair. Many of these are likely to be relevant in all unfair dismissal cases ......... In misconduct cases they include especially the employee's length of service and the need for consistency by the employer. The importance of length of service and past conduct were emphasised by the EAT in the early case of  Trusthouse Forte (Catering) Ltd v Adonis  [1984] IRLR 382  as being proper factors for a tribunal to take into account when considering whether the sanction imposed falls within the band of reasonable sanctions. Moreover, it was later accepted by the Court of Appeal that the severity of the  consequences to the employee of a finding of guilt may be a factor in determining whether the thoroughness of the investigation justified dismissal:  Roldan v Royal Salford NHS Foundation Trust  [2010] IRLR 721 ,  [2010] All ER (D) 110 (May) , CA  (dismissal likely to lead to revocation of work permit and deportation). While this latter point has obvious sense behind it (particularly where, for example, some form of professional status is in grave jeopardy), it was suggested subsequently in  Monji v Boots Management Services Ltd  UKEAT/0292/13  (20 March 2014, unreported)  that some care may be needed in its application; the basic principle was not doubted, but three caveats were mentioned:

 

(1)    this is an area where the EAT must be particularly careful not to substitute its own view on the facts for that of the tribunal;

 

(2)    it may be that the  Roldan principle may be most applicable to facts such as those in that case itself, namely where there is an acute conflict of fact with little corroborating material either way, and/or where the case against the employee starts to 'unravel' as it proceeds, in which case it makes sense to expect a higher level of investigation and adjudication on the part of the employer in the light of the severe effects of dismissal on that employee;

 

(3)    the question is whether the tribunal has in fact applied the  Roldan approach, not just whether they have done so expressly, though the EAT did add that in such a case a tribunal is advised to make it  clear in their judgment that this has been part of their reasoning.

 

The third point is obviously addressed to employment judges, but the first two may suggest caution on the part of employee representatives contemplating appeals in such difficult cases.

 

[1535.02] One final point to note is that, although misconduct can take so many forms, there is no hierarchy or gradation of the 'range' test, which simply has to be applied in all the circumstances. Clearly, there can be instances where an employer wishes (or indeed needs) to take a 'zero tolerance' approach to a certain form of misconduct, an obvious and pressing example being abuse of children or vulnerable adults. This can of course be a  factor (and indeed in that particular example it can occasionally justify dismissal on suspicion rather than belief, see para  [1481]  below), especially if made sufficiently clear to employees in advance. However,  conceptually this does not alter the range test itself ..........

 

[1550] Broadly, dismissals for a first offence may be justified....where the act of misconduct is so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;... where disciplinary rules have made it clear that particular conduct will lead to dismissal...

 

[1568] ... an employer will find it easier to justify a dismissal for a particular single act of misconduct where a rule explicitly states that breach will or may lead to a dismissal than where such a rule is absent. Effectively the rule acts as a substitute warning, and the absence of the rule may lead a court to hold that dismissal is too harsh a sanction....

 

[1570] The significance of having clear rules properly communicated to the workforce was expressed by the EAT (Beldam J presiding) in  W Brooks & Son v Skinner  [1984] IRLR 379 . ......... The EAT expressed the position as follows: ''It seems to this tribunal that whether or not an employer is justified in treating a particular matter of conduct as sufficient to justify a dismissal must include the question whether the employee knew, in a particular case, that his conduct would merit summary dismissal. Of course, there is much conduct which any employee will know will merit instant dismissal; it is unnecessary to give examples. But equally there are instances of conduct, particularly those which have been dealt with in other ways, at other times, by the employer, which the employee may well consider will not merit summary dismissal. Therefore, this tribunal considers that the consideration of the question whether the respondent knew he would be dismissed was a relevant matter-”not the only matter-”but it was a relevant matter for the tribunal to take into consideration'.'

 

[1572] So the availability of the rules may tip the balance the employer's way in a marginal case. However, the rules will have little force if they are vaguely expressed (see  Singh v London Country Bus Services Ltd  [1976] IRLR 176  where the relevant rule stated that 'the company reserves the right to dismiss summarily without notice any employee guilty of serious misconduct or misbehaviour').

 

[1575] See, too,  Laws Stores Ltd v Oliphant  [1978] IRLR 251 , EAT . Very exceptionally, however, an employer can properly take the view that no mitigating circumstances can justify a departure from the rule that the misconduct should be visited by dismissal (see the  Siraj-Eldin case, para  [1566] above).

 

[1576] However, that this is very much the exception is borne out by the decision of the EAT in  Taylor v Parsons Peebles NEI Bruce Peebles Ltd  [1981] IRLR 119 , EAT .... The law was succinctly stated by Lord McDonald as follows: '' .... The proper test is not what the policy of the respondents as employers was but what the reaction of a reasonable employer would have been in the circumstances. That reaction would have taken into account the long period of service and good conduct which the appellant was in a position to claim. It is not to the point that the employer's code of disciplinary conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed. Such a provision no matter how positively expressed must always be considered in the light of how it would be applied by a reasonable employer having regard to the circumstances of equity and the substantial merits of the case'.'

 

After finding the dismissal unfair, his Lordship added:

 

''This is not to say that the conduct can be condoned but to apply a rigid sanction of automatic dismissal in all circumstances is not in our view what a reasonable employer could have done."

 

[1582] .... The starting point here is that in a case of  gross misconduct there may be little role for long service..... the gravity of the offence outweighed the factor of the length of service. This may be particularly the case where the offence is fraudulent.

[1583] - [1651] Short of gross misconduct, long service may have a role to play in the decision, though the approach to that role may have developed over time. In the early case of  Johnson Matthey Metals Ltd v Harding  [1978] IRLR 248 , EAT  it seemed to be considered that the effect of long service might be to increase the depth of the investigation required and perhaps to give the benefit of the doubt to the employee in disputed allegations, in other words to have an  evidential effect in the investigation itself. However, in the later case of  Strouthos v London Underground  [2004] IRLR 636 , CA  a wider view was taken, viewing it as potentially a generally  mitigatory factor in the ultimate decision. The case largely concerned unfairness through extending the range and seriousness of the charges part-way through the investigation, but an incidental question arose as to the relevance of long service. At para 31 Pill LJ said:

 

'' ... it all depends on the circumstances. The statements in  McLay and  Cunningham do not, in my judgment, exclude a consideration of the length of service as a factor in considering whether the reaction of an employer to conduct by his employee is an appropriate one. Certainly there will be conduct so serious that, however long an employee has served, dismissal is an appropriate response. However, considering whether, upon a certain course of conduct, dismissal is an appropriate response, is a matter of judgment and, in my judgment, length of service is a factor which can properly be taken into account, as it was by the employment tribunal when they decided that the response of the employers in this case was not an appropriate one.''

131.       Thus, even where aspects of misconduct are admitted investigation may still be required. It will be for the tribunal to consider the knowledge of the individual assigned to make the decision on the employer's behalf and whether the employer had taken all reasonable steps to inform itself of the relevant facts prior to the decision to dismiss. To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. There is a limit on what is expected of an investigating employer ( Gray Dunn & Co v Edwards [1980] IRLR 23, Shrestha v Genesis Housing Association Ltd [2015] IRLR 399). The investigation should be looked at as a whole when assessing the question of reasonableness. In exceptional circumstances it will be necessary for the employer to investigate the circumstances relating to the mitigation.

 

132.       Suspension is not a neutral act; it must be justified on the facts of the case and should be kept under review.

 

133.       An employer's discretion to decide on a range of penalties, all of which might be considered reasonable is not untrammelled and dismissal may still be too harsh a sanction. Gross misconduct is misconduct by the employee so serious that it completely undermines the employer's trust and confidence in the employee to perform his duties. For 'gross misconduct' to be found the conduct is likely to be considered 'such as to show the servant to have disregarded the essential conditions of the contract service'-”per Lord Evershed MR in   Laws v London Chronicle (Indicator Newspapers) Ltd   [1959] 2 All ER 285 ,   [1959] 1 WLR 698 (at 701). Gross misconduct cannot be confined to the employer's own analysis subject only to reasonableness but is a mixed question of fact and law for the Tribunal in the context of the reasonableness of the sanction in unfair dismissal or breach of contract ( Sandwell & West Birmingham Hospitals NHS Trust V Mrs A Westwood [2009] UKEAT/0032/09/LA) . As a matter of law, for an employee's conduct to impliedly or expressly amount to a repudiation of the fundamental terms of the contract it must involve a deliberate and wilful contradiction of those terms or amount to very considerable negligence.

 

134.       Whilst the nature of misconduct may be sufficiently serious so as to be considered to be gross misconduct so as to potentially justify summary dismissal even for a single offence, this does not inevitably mean that dismissal will fall within the band. To jump automatically from a finding of gross misconduct to a conclusion that dismissal was reasonable leaves no room for consideration whether, though the misconduct was gross and dismissal almost inevitable, mitigating factors might mean that dismissal was not reasonable. A dismissal must be reasonable in all of the circumstances of the case, and this involves consideration of factors such as length of service, previous disciplinary history, the consequences of the dismissal and any explanation the employee may put forward for the conduct in question that a dismissal is not reasonable. Long service should be taken into account but is not a defence to all acts of misconduct. The existence or absence of clear policies may be a factor. Where previous expired warnings are taken into consideration by employers in dismissing this will not necessarily make a dismissal unfair but falls within circumstances to be considered by the tribunal looking at fairness. Dismissals for a single first offence must be particularly serious. The tribunal must assess the reasonableness of the employer's conduct, not the level of injustice to the employee. The tribunal must only take into account facts known to the employer at the time of dismissal. A tribunal must consider whether in dismissing the employee the employer has acted within a 'band or range of reasonable responses' to the particular misconduct found of the particular employee to be determined in accordance with equity and the substantial merits of the case.

 

135.       The Labour Relations Agency Code of Practice on Disciplinary and Grievance procedures advises that disciplinary rules and procedures should be clear and brief and explain their purpose; that rules and procedures should be explained to employees and they should have a copy or ready access to them; suspension should only be imposed after careful consideration for its necessity and consideration of alternative actions which might serve the same purpose, and reviewed frequently to ensure that it is not unnecessarily protracted; and that copies of records of meetings should be given to the employee including copies of any formal minutes that may have been taken (Paragraphs 11,38, 55, 58,59, 60, 61, 63, 66).

 

136.       The right to be legally represented in disciplinary proceedings was considered by the Court of Appeal in AB v Down District Council [2012] NICA 60 and relevant authorities reviewed. It was held that the outcome of that disciplinary hearing was not determinative of the civil right of the appellant to practice his chosen profession so as to engage the protections of Article 6, the right to a fair trial, of the European Convention on Human Rights, nor did his disability.

 

137.       In summary, it is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: that is, whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.

 

138.       Dismissal without notice will be in breach of contract unless the employer is entitled to dismiss summarily. This right arises when the employee commits a repudiatory breach of contract as a result of which the employer may treat the contract as discharged by the breach. At common law, terms implied into the contract of employment include terms of trust and confidence and to provide loyal service and an employer is entitled to dismiss his employee without notice for gross misconduct. What the tribunal thinks objectively probably occurred (whilst not relevant to unfair dismissal) is relevant to wrongful dismissal and whether the tribunal considers misconduct amounting to a breach actually occurred.

 

SUBMISSIONS, CONCLUSIONS AND APPLICATION OF THE LAW TO THE FACTS FOUND RELEVANT TO LIABILITY FOR UNFAIR DISMISSAL

 

139.       Main authorities referred to by the claimant:-

 

•       Chamberlain Vinyl Products Ltd v Patel EAT/796/94

 

•       The City of Edinburgh Council v Dickson UKEATS/0038/09/B1 in which it was held that the decision-taker refused to 'engage with' the defence notwithstanding material adduced in support of it; and if the defence had been properly considered it would have been accepted.

 

140.       Main authorities referred to by the respondent:-

 

•       Rogan v South Eastern Health and Social Care Trust [2009] NICA 47

•       J Sainsbury v Hitt [3003] ICR 111

•       Gray Dunn & Co v Edwards [1980] IRLR

•       G McFall & Co Ltd v Curran [1981] IRLR

•       Morrison v Amalgamated Transport & General Workers' Union [1989] IRLR 361

•       Ingram v Bristol Street Part [2007] ALL ER(D) 354 (May)

 

141.       It was contended on behalf of the claimant dismissal was substantively and procedurally unfair because:

 

A.            Contrary to the general principles of 3.1 of the Disciplinary procedures Mrs Nesbitt did not share or inform the claimant of any of the meetings or telephone discussions she had with Elsie Napier, Clara Havern, SRC students, Lyn Bussell, Heather Bann or Nicola Gibson, nor provided prior written notice of the meetings she was invited to on 3 and 14 September 2015, resulting in the 'clumsy and impulse responses' provided by the claimant to questions put.

 

In respect of the claimant's earlier suggestion that Mrs Nesbitt under the respondent's own procedures should not have carried out the investigation as the person who raised the matter against the claimant we consider the claimant has mistakenly relied upon Paragraph 3 of the LECTURER DISMISSAL AND SUSPENSION PROCEDURE which in fact provides on it appearing that consideration should be given to the dismissal of a teacher, the committee established by the governing body for that purpose shall not include, as a member or otherwise, any person who was connected with the charge, complaint or adverse report affecting the teacher's conduct or capacity.

 

There is no statutory requirement or provision under the respondent's own procedures for prior notice of alleged misconduct and possible disciplinary action to be given prior to an investigatory meeting but rather in the operation of the respondent's Formal Procedure before a disciplinary interview. We find that the respondent's above procedure was as such properly followed, that information was shared and prior written notice given in the operation of the formal procedure after completion of the investigatory stage.

 

B.            Mr Devlin despite recognizing the importance of conducting a robust investigation into all areas that might prove guilt or exonerate the claimant relied upon the investigation conducted by Mrs Nesbitt and failed to:

 

(i)         Re-investigate the error of the absence of a date ('blank date') before the month of March in Mrs Nesbitt's notes with Heather Bann on 11 September.

 

We find that it was within the band of reasonableness for the respondent not to consider the absence of a specific date in the month of March having been put to Ms Bann to be of consequence so as to constitute an error requiring correction.

 

(ii)        Clarify further with Heather Bann, on learning at the disciplinary hearing on 10 December 2015 that Cathy Douglas saw the claimant hand over an envelope on 18 March 2015 and may have said ' money for the weekend', whether she received an envelope, before arriving at his decision to recommend dismissal.

 

Mr Devlin first became aware of the 'money for the weekend' comment on 16 December 2015 on seeking clarification about the envelope witnessed by Mrs Douglas being handed over to Campus Services by the claimant. The standard of proof for an employer is to be satisfied on a balance of probabilities, it is not for an employer to investigate to a criminal standard nor indeed every line of defence presented. Furthermore it is not for a tribunal to decide what investigations would have been appropriate in light of evidence heard at hearing but to consider was further investigation required to satisfy the requirements of fairness.

 

We note, as highlighted by the claimant at the second disciplinary hearing, that the comment made by Mrs Douglas appeared unprompted; also there was a very serious allegation of fraud made against the claimant which given the potential consequences for her, as per Salford Royal NHS Trust v Roldan and A v B, necessitate careful and conscientious investigation of the facts and the investigator charged with carrying out the enquiry to have focused no less on any potential evidence that might exculpate or at least point towards the innocence of the employee as he should have on the evidence directed towards proving the charges against her. We note Mr Devlin/ Mrs Hughes on behalf of the respondent were prepared following the second disciplinary hearing to undertake enquiries spanning three months questioning the authenticity of the receipt from Sally Salon Services produced by the claimant to vouch alleged expenditure. We consider by majority the requirements of fairness clearly did require the respondent to focus no less on this matter which might have at least pointed toward the innocence of the claimant and to have made further enquiry into the envelope given by the claimant to a receptionist at Campus Services purported to have contained £200, arising from the apparently unprompted comment of Ms Douglas albeit that she expressed some uncertainty in her recollection, before Mr Devlin proceeded to make a decision on the evidence before him to recommend dismissal, which he did following both the first and second disciplinary hearings.

 

(iii)       Explore the possibility that the Agresso system may have been down on 18 March 2015, or may have been no receipts available at the time, and hence the reason why a receipt was not issued to the claimant.

 

We consider in the absence of any case being put by the claimant at the time that the Agresso system may have been down together with the claimant's first account to Mrs Nesbitt of having been given a receipt which she no longer held after a clear out, that for the respondent not to have explored the possibility of the Agresso system having been down fell within the band of reasonableness.

 

(iv)       Contact the claimant's GP to clarify the symptom known as fibro fog or foggy memory mentioned to him on 4 February 2017 despite Mr Devlin's awareness of the claimant's history of depression and Fibromyalgia Syndrome as set out in the Occupational Health report.

 

Both Mrs Nesbitt and Mr Devlin relied greatly upon perceived inconsistencies in accounts given by the claimant in reaching their decisions, likewise did the Committee of the Governing Body. Whilst in general it will not be necessary to do more than permit the employee to give any relevant explanation or justification as per Chamberlain Vinyl Products Ltd v Patel EAT/796/94 in exceptional circumstances further investigation may be required to put the employee's conduct in context. We note:

 

•       Mr Devlin was aware from the occupational health report of 16 November 2015 of the claimant's history of depression/ anxiety and Fibromyalgia Syndrome which could be worsened by out of hours work.

 

•       At the second disciplinary hearing on 4 February 2016 Mr Devlin was made aware by the GP report of the claimant having suffered in the past from episodes of stress, anxiety and depression and had consulted in March 2015 with stress, low mood and anxiety.

 

•       The claimant confirmed at the second disciplinary hearing that she had been seeing her GP due to anxiety, depression and post-traumatic stress since her partner dying and had been on medication for this.

 

•       A discussion took place thereafter at the second disciplinary hearing of 'fibro fog' and there was recognition that the medical evidence produced by the claimant did not address this matter.

 

•       It was agreed that further medical evidence could be sought to support the claimant's case and suggested that it could be sought by the respondent on her behalf with her consent.

 

•       The claimant confirmed this was part of her mitigating circumstances.

 

•       The claimant's consent to obtain further medical evidence was not sought thereafter by the respondent and a decision reached by Mr Devlin in the absence of any further medical evidence having been provided by the claimant.

 

By majority we consider that akin to Chamberlain Vinyl Products Ltd v Patel further enquiry was necessary in these circumstances in the interests of fairness with a view to putting the claimant's conduct into context in light of her health/ medication or at the very least to close this issue, before the respondent proceeded to make a decision thereon.

 

(v)        Consider prior to 10 December 2015 a copy of the claimant's timetable for 2013/2014 semester before concluding that the claimant was conducting duties in the respondent's time, rather than her own time on 13 March 2014.

 

Mr Doran acknowledged under cross examination that it was possible a lecturer could have completed their student contact hours and associated duties within four and a half days of the working week but no enquiry was made into the claimant's defence that she believed she was attending the 2014 event in her own time which given the potential relevance in putting her conduct into context, and overall seriousness of the allegations made, we by majority consider fell outside the band of reasonableness.

 

(vi)       Contact Elsie Napier himself to clarify the dispute over the amount the claimant was alleged to have received being £150 rather than £30 as maintained by the claimant.

 

The respondent made no enquiry over the dispute of fact raised by the claimant as to the amount paid to her for the 2014 event, albeit that the claimant maintained thereafter she had attended in a personal capacity. The amount unaccounted for from the 2014 added to the overall gravity of the alleged conduct by the claimant and we consider by majority, that for the respondent to conclude that the claimant was paid £150 rather that £30 without any further enquiry fell outside the band of reasonableness.

 

(vii)     Contact Nicola Gibson in person after Mrs Nesbitt's telephone interview with her on 14 September 2015 to clarify whether she had been informed of the March 2015 Pamper Me event.

 

The claimant contended that she had informed Ms Gibson of the 2015 event (albeit not sought advice on cash handling in respect of it) a matter relevant to the claimant's assertion that she was quite open rather than clandestine in her approach to it. This was not investigated in Mrs Nesbitt's enquiry. As per Av B, a careful and conscientious investigation of serious allegations such as fraud should include matters that may point towards innocence not just guilt. Whilst it is not clear whether the respondent drew an inference supportive of deception and fraud based on the claimant having sought not to bring the event to management's attention, we consider were it to have done so, fairness would have required further enquiry in this respect as a matter which may have pointed toward innocence.

 

(viii)    Accept the claimant's handwritten breakdown of her expenses despite the time that had elapsed from March to September 2015.

 

We consider that Mr Devlin was not entirely open minded in his decision making, we note (bearing in mind that it is not for the tribunal to decide the weight that ought to have been attached to evidence) that Mr Devlin in the absence of vouching documentation afforded no credence to the claimant for her alleged expenditure despite Mrs Nesbitt's acknowledgement following the claimant's reference to her spreadsheet and alleged expenditure for foundation, mascara and cotton wipes in the first disciplinary hearing, that running out of stock at the event would have required items to be bought for the students to carry on, Mr Devlin's own acknowledgement in his decision letter that the 2015 event was busy with long queues but well managed by the claimant, and items (including wipes and water) confirmed by students as having been provided. We however are of the view overall, despite the six month delay, that the respondent's non acceptance of the handwritten breakdown provided by the claimant, in the absence of vouching documentation, fell within the band test.

 

(ix)       Accept as bonafide the Sally's Salon Services Receipt for stock purchase on 18 March 2015 despite correspondence sent to Sally's Salon Services on 16 February and 9 May 2016, Shelly O'Neill's express clarification that she recalled serving the claimant and if a receipt had been requested by the claimant after the event it would have borne a later date.

 

We consider that it was within the band of reasonableness for the respondent to have concluded based on its enquiries from Sally Salon Services that it could not attach weight to the receipt so as to rely on it in the claimant's favour.

 

We do not consider that the respondent can be criticised for being over thorough in its investigation into the authenticity of the Sally Salon Services receipt but are of the view that the respondent's assiduous approach over the protracted period of three months stands in stark contrast to its readiness to investigate aspects more easily within its reach which might have pointed toward the claimant's innocence or put her conduct into context.

 

It is not for the tribunal to determine the weight that ought to have been attached to evidence. Mr Doran responded to Mr Martin's comment that the account suggesting that the claimant had asked the manager from Sally Salon Services for a duplicate receipt was incorrect, that this was properly a question for Sally Salon Services. Again, whilst not clear whether the respondent did so, we consider if an inference were to have been drawn thereon as to deliberate and wilful conduct in breach of the implied term of trust and confidence without further exploration at the very least by way of a specific allegation being put to the claimant to the effect that she had sought to mislead the respondent with a receipt obtained after the event would fall outside the band of reasonableness.

 

C.            The respondent did not have in place a policy/ procedure to offer guidance on managing funds from an external client, but expected the claimant to consult with management although the Pamper Me event was a success.

 

The main criticism levelled throughout at hearing at the claimant by the respondent was that she failed to seek management advice. Whilst the respondent cannot be criticised for the absence of a procedure on managing third party funds given the uncommon nature of the circumstances, likewise dismissal in the absence of clear direction to the claimant in circumstances where there is ambiguity as to the protocol to be followed we accept is a relevant factor to be taken into account in this case in assessing proportionality and overall fairness of the decision to dismiss, as is the claimant's absence of knowledge of the respondent's written cash handling procedure.

 

D.            Unlawfully suspended the claimant as approval from the Board of Governors should have been obtained.

 

The claimant's suspension was implemented by Mr Doran, the principal, in accordance with paragraph 7 of the Lecturer Dismissal and Suspension Procedure but at no time thereafter was consideration given by the respondent to whether the claimant's suspension should continue by way of a meeting of the committee of the governing body as required under paragraph 9 or opportunity to appeal same under paragraph 10. Whilst in light of the imminent meeting to take place on 20 January 2016 to consider the recommendation of dismissal our view is that this was initially reasonable but thereafter following the referral of matters back to Mr Devlin for consideration not to review the claimant's continued suspension in the five months thereafter up the initial dismissal decision was clearly in breach of the respondent's own contractual procedures and LRA Code of Practice. It was contended that that the claimant was not prejudiced in the gathering of any evidence by her suspension because investigations were at that point in any event almost complete, but this is likewise reason for consideration whether ongoing suspension is justified and for regular review thereof particularly in light of the risk that it may subconsciously colour the judgement of subsequent decision makers, and cannot be satisfactorily determined on the evidence before us whether this occurred. The claimant's ongoing suspension without review was in clear breach of the respondent's own procedure and we consider fell outside the band of reasonable responses.

 

E.            Brian Doran rubber stamped the actions of Mrs Nesbitt and Mr Devlin, expected the claimant to use common sense in the absence of a policy and was tainted by prior knowledge of the claimant's case from speaking with John Quinn, members of management and politicians and therefore negatively influenced the disciplinary and appeal process.

 

We are not satisfied that matters set out above arising in the earlier stages of the investigation and disciplinary procedure were subsequently addressed and remedied before the final decision to dismiss was ratified on behalf of the respondent nor that the subsequent decision making process was not tainted by them.

 

We consider it was within the band of reasonableness for Mr Doran to have expected the claimant to use common sense or to have sought guidance from a superior in respect of treatment of funds paid by a third party if in doubt as to how to deal with same but are of the view that the interests of fairness required further enquiry for the respondent to assess the context and seriousness of her conduct.

 

We note that at the time of the decision to suspend the claimant in January 2016 Mr Devlin's initial recommendation for dismissal had already been made and would have been known of by Mr Doran and that Mr Doran in and around that time spoke to Mr Quinn a co-director who was proposing to represent the claimant but did not proceed to do so. We consider Mr Doran's evidence that he would have had scant knowledge of the case prior to the hearing unlikely but are not satisfied on balance on the evidence that Mr Doran was tainted by his prior knowledge of the claimant's case. We note Mr Doran refused to speak about the case with public representatives who made approaches on behalf of the claimant and claimant was asked to have them refrain from making such approaches. We do not consider there to be evidence before us to support the claimant's contention that Mr Doran negatively influenced either the disciplinary or the appeal process.

 

F.            Delay in provision of the minutes

 

The delay in the provision of minutes to the claimant from the investigatory meetings on the basis that there were other investigations to be carried out we consider was not reasonable and falls outside the band test and clearly left the claimant in a position that she was unable to fully recollect the discussions had and accuracy of the document presented to her for agreement albeit that she was given the opportunity to make amendments thereto.

 

G.            Consideration of disciplinary record as blemished

 

It may be acceptable to take into account expired warnings on an employee's disciplinary record when considering mitigating circumstances. Under the respondent's disciplinary procedure if an oral warning had been given to the claimant as a disciplinary sanction under the formal procedure, rather than informal action taken, it would have been destroyed after a period not exceeding 18 weeks. Mrs Nesbitt considered the claimant's record to be clear whereas Mr Devlin was of the opinion that the claimant's record was blemished with what he termed ' a formal counselling letter' albeit this was a letter issued under the informal procedure, Mr Doran did not specify in his evidence on his consideration of the claimant's disciplinary record which he considered it to be. We do not find on balance that the respondent's consideration of the claimant's disciplinary record was within the band of reasonable responses given the informal nature of the action taken against the claimant and date thereof.

 

H.            Refusal of legal representation at appeal hearing

 

We consider that the respondent's refusal to allow the claimant legal representation at the appeal hearing so not to set a future precedent fell within a band of reasonable responses because the hearing was not determinative of the claimant's civil right to practice her chosen profession and she was permitted to be represented by a colleague or Trade Union representative.

 

142.       Taking into account the above, we find on a balance of probabilities:

 

143.       The statutory dismissal and disciplinary procedures have been complied with.

 

144.       No evidence was adduced to the contrary and we are satisfied that the respondent has shown the genuine reason for the claimant's dismissal related to her conduct which is a potentially fair reason for dismissal.

 

145.       We accept that the respondent had a genuine belief in the misconduct of the claimant, but, by majority do not consider overall that the respondent conducted a reasonable investigation into the alleged misconduct and mitigation, and that the respondent had then acquired reasonable grounds for its belief in guilt such that the 'Burchell' test has thereafter been met.

 

146.       At the core of this case was that the claimant had admitted having without authority received money from a third party intended for the respondent and having distributed it as she saw fit, there was no record of what had happened to the balance after payments were made to students or satisfactory vouching documentation to corroborate the claimant's account as to her application thereof, however the claimant disputed that the full balance was retained by her and in particular that she had acted in bad faith/ fraudulently. The claimant raised her health and personal circumstances in mitigation.

 

147.       As per Roldan this case involved in particular a very serious allegation in effect of criminal misbehaviour, by way of fraud, which was disputed. Given the gravity of the consequences this required most careful and conscientious investigation of the facts by the investigator focusing no less on any potential evidence that might have exculpated or least pointed towards innocence, as on the evidence directed towards proving the charges against the claimant. Whilst an employer is not expected to investigate to a criminal standard and we accept that not all disputes of fact can always be resolved, the more serious the allegation and consequences for the employee the more cogent the evidence should be to satisfy the reasonable employer on a balance of probabilities of the employee's guilt. By majority we consider that the respondent's investigation into the claimant's culpability in terms of whether her conduct was dishonest, involving deceit so as to amount to fraud or whether the claimant deliberately and wilfully tried to mislead the respondent in breach of the implied term of trust and confidence, was inadequate and the respondent had not taken all reasonable steps to inform itself of the relevant facts prior to reaching its decision to dismiss, including into the effects of the claimant's medical conditions on her behaviour. Whilst normally an employer will just hear an employee's explanation in mitigation and not be expected to investigate, we consider that the circumstances of this case however bear similarity to Chamberlain Vinyl Products Ltd v Patel the claimant's health issues and depressive illness having been brought to the respondent's attention. We consider conclusions based on the investigation carried out (whether or not these included a belief by the respondent of a clandestine approach by the claimant and deliberate attempt by her to mislead) in the absence of further enquiry into matters as set out above, that might have pointed to innocence and possible effect of her illness/ medication on her behaviour, were premature, fed into subsequent decision making tainting the fairness of the procedure thereafter and were not remedied at a later stage. As such when the governing body ultimately formed a belief in the misconduct of the claimant, we consider the respondent had not carried out as much investigation into the matter as was reasonable in all the circumstances so as to justify its state of mind at the moment of dismissal.

 

148.       By majority, we do not consider the respondent's approach to the investigation was even handed or its decision making open minded; we find overall that the procedures by which the respondent's decision was reached fall outside the band of reasonable responses test. We in particular note:

 

•       Mrs Nesbitt's delay in providing the claimant minutes of the investigatory meetings for which Mrs Nesbitt cited reasons as including the need to question other staff members named by the claimant as witnesses. The delay compromised the claimant's ability to recollect what had in fact been said and led to her signing the minutes subject to comment that she was not happy they were accurate. The respondent thereafter relied heavily on perceived inconsistencies in the recorded accounts given by the claimant in the minutes.

 

•       The claimant's lengthy suspension without review thereof contrary to the respondent's own procedures and despite LRA Code guidance.

 

•       The respondent's (in particular Mr Devlin's) consideration of the claimant's disciplinary record as being blemished by a formal counselling letter despite it being issued under the informal procedure and passage of time since.

 

•       The absence of further enquiry into the envelope witnessed being given by the claimant to campus services on the morning of her first day back to work following the 2015 event and 'money for the weekend' comment overheard.

 

•       The absence of further enquiry regarding the claimant's illness and its effects despite mention thereof in the Occupational Health & GP reports and discussion had about obtaining further medical evidence at the second disciplinary hearing.

 

•       The absence of further enquiry into the capacity in which the claimant attended the 2014 event or amount paid despite disputes of fact raised.

 

149.       By majority we do not consider on balance that the respondent has shown that it would in any event have decided to dismiss the employee if correct procedures had been followed.

150.       We find that the nature of the misconduct could clearly amount to gross misconduct justifying summary dismissal but consider by majority that the penalty imposed fell outside the band of reasonable responses which a reasonable employer might have adopted in the all the circumstances of this case taking into account in particular the following:

 

•       The respondent had no policy/ procedure regarding the handling of third party funds.

 

•       The claimant was not aware of specific requirements of the written cash handling procedure.

 

•       There was an absence of training in the respondent's anti-fraud policy and the claimant unclear such conduct could constitute gross misconduct thereunder.

 

•       The claimant's disciplinary record which had no existing or expired formal warnings thereon.

 

•       The claimant's personal and health issues at time.

 

•       The claimant's seniority.

 

•       The claimant's long service.

 

151.       Accordingly, by majority we find in all the circumstances (including the large size and administrative resources of the employer's undertaking), having regard to equity and the substantial merits of the case, that the respondent acted unreasonably in treating the claimant's conduct as a sufficient reason for dismissing her under Article 130(4) of the 1996 Order.

 

MINORITY OPINION

 

152.       In respect of the claimant's contentions that Mr Devlin failed to:

 

•       Clarify further with Heather Bann, on learning at the disciplinary hearing on 10 December that Cathy Douglas saw the claimant hand over an envelope on 18 March 2015 and may have said 'money for the weekend' whether she received an envelope, before arriving at his decision to recommend dismissal.

 

The minority view was that, in the circumstances as a whole, the enquiries made by Mr Devlin fell within the band of reasonable responses. The minority view was that Mr Devlin was entitled, at that stage, to treat the claimant's evidence in relation to the alleged deposit of £200 in an envelope to Campus Services, with, at best, conflicting recollections as to whether or not a receipt had been issued, as unreliable, rendering further investigation unnecessary. Looking at the case as a "whole", as we are encouraged to do by Burchill, the respondent's concerns centred on the acceptance of £600 in cash. (leaving aside for the moment, the matter of the £150 payment in 2014). Their view was that this ought not to have been accepted, nor disbursed in the manner alleged. Pursuing the alleged "disbursement" of £200 of that sum, to the extent required by further investigation of the envelope issue, seems an unreasonable burden to place upon the respondents. Such an investigation would not have addressed the issue that the payment ought not to have been accepted at all. While it would have been preferable for the respondent to have pursued this matter further, the minority member does not believe that its failure to do so took the investigation into "unreasonable" territory.

 

•       Contact the claimant's GP to clarify the symptom known as fibro fog or foggy memory mentioned to him on 4 February 2017 despite his awareness of the claimant's history of depression and Fibromyalgia Syndrome as set out in the OH report.

 

The minority view was that there must be a limit to the extent to which an employer is obliged to investigate matters further, merely because it does not accept an original contention. The respondent was entitled to accept the OH report which it had sought and obtained. While we did not have the original questions, which had been put to OH, there was nothing in the response which ought to have altered the respondent's stance. In all the circumstances of this case the investigation of the medical issues was, in the minority view, reasonable.

 

•       Contact Elsie Napier himself to clarify the dispute over the amount the claimant was alleged to have received being £150 rather than £30 as maintained by the claimant.

 

The minority view was that there appeared to have been little or no investigation of the £150 payment in 2014. The minority considered that, in the context of the case as a whole, that the failure to pursue this matter as thoroughly as was done in respect of the £600 payment, did not take the investigation beyond the bounds of reasonableness. The claimant's view on the 2014 payment was that it was hers to keep as it was for work done on her own time. The College's view was that it ought not to have been accepted and that the claimant had been working on their time for at least a portion of the "event". The amount of payment was not relevant. In the case of the £600 the claimant said that she had disbursed it in a way which the respondent then investigated. In the case of the 2014 payment the claimant accepted that she had kept it, save for an amount paid to one student. The issue therefore was not about how she had used the £150, as the respondent believed, or the £60 which the claimant contends was paid, but whether or not she was entitled to keep it. The minority view was that the investigation of this matter was reasonable and sufficient to establish that the claimant had kept it. She admitted such.

 

LAW RELEVANT TO REMEDY

 

153.       Remedies for unfair dismissal where the grounds of a complaint are found to be well-founded (Articles 145 - 167 ERO) are an order for reinstatement, or re-engagement, and otherwise compensation.

 

154.       Under Article 150 ERO, in exercising its discretion under Article 147 to make an order for reinstatement or re-engagement, the tribunal shall first consider whether to make an order for reinstatement and in doing so shall take into account- (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

 

155.       Article 148 ERO sets out matters which shall be specified in an order for reinstatement.

 

156.       The starting point for the calculation of the compensatory award is set out at Article 157(1) ERO which provides:

 

"(1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".

 

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

 

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

 

FINDINGS RELEVANT TO REMEDY ONLY AND CONCLUSIONS

 

Having made a decision on liability the tribunal find the following facts for the determination of remedy only:

 

159.       The effective date of termination (EDT) was 17 November 2016. The claimant was aged 42 years of age at that date and had eleven full years' service. Her gross weekly wage was £862 and net weekly wage £550.

 

160.       The claimant sought re-instatement by way of remedy.

 

161.       By majority we find that the claimant was not aware that her conduct could be considered gross misconduct warranting summary dismissal.

 

162.       The respondent is a large employer with numerous campuses.

 

163.       Mrs Nesbitt, as per her evidence, had no issues with the claimants work.

 

164.       The claimant holds her colleagues in high regard and is willing to participate in mediation to improve any relationship if considered required.

 

165.       The claimant is in receipt of job seekers allowance of £74 per week.

 

166.       The claimant despite her endeavours has been unsuccessful in finding suitable alternative employment, save for a four weeks period and now works as a part-time self-employed beauty therapist. The claimant has earned in total £841 between the EDT and date of hearing.

 

167.       In the period 6 April 2017 to 15 August 2017 the claimant made a net profit of £293 (approximately £16 per week).

 

168.       We are not persuaded that correct procedures absent the inadequacies identified above would have made no difference to the outcome. We are not persuaded that a Polkey reduction is appropriate.

 

169.       The respondent contended that it was not practicable to comply with an order for re-instatement because it had lost trust and confidence in the claimant.

 

170.       By majority we do not consider that the respondent's loss of trust, whilst may be genuinely believed, is based on rational grounds in light of the inadequacies found in the investigation carried out and unfairness tainting the overall procedure in this matter.

 

171.       The respondent contended that it was not practicable to comply with an order for re-instatement because it had engaged a replacement for the claimant.

 

172.       No evidence was adduced that it was impracticable for the respondent to have delayed in engaging a permanent replacement of the claimant.

 

173.       We accept that the claimant's conduct in particular failure to keep management informed and seek management advice was foolish and amounts to blameworthy conduct that heavily contributed to the respondent's decision to dismiss. We find it just and equitable to make a 50% reduction in the compensatory awards to reflect this.

 

174.       We do not consider the claimant's contributory conduct such that it would be contrary to just and equity to grant the remedy of reinstatement sought.

 

175.       The tribunal therefore orders the reinstatement of the claimant on 19 February 2018. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant. The respondent shall pay to the claimant compensation as follows:

 

EDT to date of hearing

 

Say 42 weeks @ £550 = £ 23,100

Less monies earned in mitigation = - £ 841

£ 22,259

Loss to date of re-instatement 11/9/17 to 19/02/18

Say 23 weeks @ £550 = £ 12,650

 

Less monies anticipated

to be earned/received

(say £368 + £1,702 JSA) - £ 2,070

£ 10,580

£32,839

 

Less 50% deduction for contributory conduct - £16,419.50

_________

Total £16,419.50

 

176.       The parties may seek to agree between them to vary the date of reinstatement provided and to adjust the amount of compensation due up to it accordingly.

 

NOTICE PAY CLAIM

 

177.       In light of the above order for re-instatement, in particular the restoration of all rights and privileges, we consider no loss has been suffered by the claimant were a breach of contract determined to have occurred.

 

RECOUPMENT

 

178.       The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendments No 6) Regulations (Northern Ireland) 2010 and your attention is drawn to the attached notice:

 

(a)           Monetary award £16,419.50

(b) Prescribed element £11,129.50

(c)           Period to which (b) relates: 17 November 2016 to 11 September 2017

(d)           Excess of (a) over (b) £5,290.00

 

CONCLUSION

 

179.       The tribunal find by majority that the claimant was unfairly dismissed contrary to Article 130 of the 1996 Order and shall reinstate the claimant to her post on 19 February 2018 and shall pay to her compensation of £16,419.50. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant. The claimant has not suffered a loss arising from a breach of contract.

 

180.       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 11-15 September 2017, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

Case Ref No: 1161/17

 

CLAIMANT: Jill Leeman

 

RESPONDENT: Southern Regional College

 

ANNEX TO THE DECISION OF THE TRIBUNAL

 

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME -RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT

 

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010.

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department for Communities has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

 

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

 

3. The claimant will receive a copy of the recoupment notice and should inform the Department for Communities in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.