THE INDUSTRIAL TRIBUNALS

CASE REF:  2820/17

CLAIMANT: 	Hannah McAllister

RESPONDENT: 	Raymond Carberry and Ursula Carberry, t/a Café Carberry

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and is entitled to an award of £1369.75.

Constitution of the Tribunal

Employment Judge:	Employment Judge Oliver

Members:			Mrs J Foster
				Mr R Black

Appearances

The claimant attended and represented herself.

Mr Raymond Carberry attended and represented the respondent business.

CLAIM

1.	The claimant lodged a claim for Unfair Dismissal on 8 May 2017.  The respondent entered a response on 6 June 2017 confirming that the claimant had been dismissed.
 
LEGAL ISSUES

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

Unfair Dismissal
	
(i)	Did the dismissal by the respondent amount to unfair dismissal? 

(ii)	If the dismissal was unfair, did the conduct of the claimant contribute to the dismissal?

EVIDENCE

3.	The tribunal considered the witness statement and oral evidence of the claimant and the witness statement and oral evidence of Mr Carberry of the respondent.  The tribunal also took into account documentation to which it was referred during the course of the hearing. 
 
FINDINGS OF FACT

4.	The tribunal found the following relevant facts to be proven on a balance of probabilities:-

5.	The claimant was employed by the respondent as a waitress from 13 April 2015 until 
8 May 2017 when she was dismissed for gross misconduct.

6.	The claimant was earning £250 gross per week and was aged 25 at the date of dismissal.

7.	There were no outstanding disciplinary matters at the time of the incident which led to dismissal on 5 May 2017.

8.	The events of 5 May 2017 were the only matters taken into account by the tribunal in determining whether the dismissal was fair or unfair.

9.	On the morning of 5 May 2017, the claimant took an agreed break from her duties.

10.	The exact time of the break is unclear.  The claimant stated that the break commenced at 10.00 am whereas the timeline provided by the respondent indicated that the break commenced at 11.20 am.  We did not consider that anything turned on the time of the break but the total time involved is relevant.  We adopt the timeline prepared by the respondent but do not believe that the actual times are important.  In other words, whether the break commenced at 10.00 am or 11.20 am is not material.  The length of time involved is the same whether we use the claimant’s time or the respondent’s time.

11.	The respondent had CCTV footage of the claimant leaving the building.

12.	We were not shown any footage from the CCTV.

13.	As the claimant was passing the drinks fridge on her way to the door, the claimant lifted a ‘VITHIT’ juice from the fridge.  The claimant stated that she lifted the drink as she had forgotten to bring her water with her.

14.	The respondent had a policy with regard to consumption and payment of food and drink entitled ‘Staff Food and Drink Policy’.  The policy allows for the taking of free tea and coffee and a free lunch but items from the fridge must be paid for at a discounted rate.  The relevant portion of the policy states as follows:

“Drinks items from the fridge or sweets/crisps are not included.  These can be purchased at a discounted rate as stated on the jar provided behind the counter.  Payment must be made to another member of staff before you eat or drink it-at the point of taking the item.

The taking of food items that does not follow with this policy will be treated as gross misconduct”

15.	The Policy was on display attached to the fridge in the kitchen.

16.	The claimant accepted that she had seen the Policy but was not aware of its full import.

17.	The claimant spoke to another member of staff after she had lifted the drink form the fridge and offered to pay for it.

18.	The claimant did not have the correct change and as the other member of staff was busy with a customer, it was agreed between the two employees that the claimant would pay for the drink when she returned.

19.	The claimant left the café without paying for the drink.

20.	The claimant returned to the café at 11.52 am according to the timeline prepared by the respondent.

21.	The claimant immediately started cleaning the under-counter freezer as she stated it was leaking.

22.	At 11.55 am the claimant was approached by the respondent.

23.	The respondent was carrying empty drink bottles.  He asked the claimant if she owned the ‘VITHIT’ and she replied that she did.

24.	The respondent asked the claimant if she had paid for the drink and she replied that she had.

25.	The respondent then asked the claimant if she was sure she had paid for it and the claimant confirmed that she had put the money in the jar.  The claimant suggested that the respondent could get confirmation from the other member of staff that this had happened.

26.	The respondent indicated to the claimant that he would be checking the CCTV cameras.

27.	The claimant then spoke to the other member of staff who reminded the claimant that she had not actually paid for the drink before leaving the building.

28.	The claimant then paid for the drink.

29.	The claimant was given a letter as she was leaving work on 5 May 2017.  The letter called the claimant to a disciplinary hearing on 8 May 2017.

30.	The claimant attended the disciplinary hearing on 8 May 2017 along with a work colleague.

31.	There are no notes of the disciplinary hearing as the respondent informed the tribunal that he could not get a note taker.  When questioned further by the tribunal, the respondent confirmed that he had taken cursory notes at the hearing.  The respondent was asked to bring these to the tribunal after the lunch break.  After lunch, the respondent informed the tribunal that he was unable to find the notes he had taken.

32.	The meeting took place at 3.00 pm on 8 May 2017 and was concluded by 4.30 pm.

33.	The respondent decided to dismiss the claimant on the grounds of gross misconduct and a letter to this effect was sent to the claimant on 8 May 2017.

34.	The claimant was given a right of appeal and by e-mail of 12 May 2017 was provided with the documents which had been used to reach the decision regarding dismissal.  The e-mail also included a report of another incident on 4 May 2017 in which the claimant had allegedly decorated a bun for a customer and had not charged the customer for the bun.

35.	It would appear that this incident had not been referred to at the initial disciplinary hearing.

36.	The claimant provided a written response to the respondent’s report regarding the decorated bun.

37.	The Appeal was due to be heard on 16 May 2017 and the claimant was informed that the appeal would be heard by Mr Carberry as no one else was available. 

38.	Initially, the claimant stated she would attend the Appeal.  However, she later indicated that due to mental health issues, she was not able to attend.  The claimant was offered a different chair of the hearing and a different time but declined these offers and asked for the appeal to go ahead in her absence.

39.	The appeal went ahead in the absence of the claimant and the respondent upheld the decision to dismiss.

40.	The appeal was heard by the same person who had made the decision to dismiss.  This is not ideal.  However, in a small business, it can be difficult to avoid.  The tribunal noted that the appellant had been given an opportunity to have the appeal chaired by another person and at another time but declined this offer.

41.	The claimant chose not to attend the appeal hearing.

42.	The tribunal finds that the disciplinary and appeal procedures were sufficient to comply with the legislation.    

LAW RELEVANT TO LIABILITY

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

44.	Article 130(1) of the 1996 Order 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.

45.	Under Article 130(4) of the 1996 Order:-

“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”.

46.	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.

47.	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.

48.	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”.

49.	Harvey on Industrial Relations and Employment Law paragraphs [1550] – [1566] confirms that dismissals for a single first offence must be particularly serious.  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).  Whilst common law authority merely indicates a range of potential lawful summary dismissals for first offences of conduct which has on occasion been thought sufficient to justify dismissal without warning (examples of which include unauthorised use of/ or tampering with a computer, irrespective of the motive of the employee and even if in fact he derives no benefit from his actions), dismissal may still be unfair under the Statute if in all the circumstances the employer has acted unreasonably, for example in refusing to consider extenuating circumstances.

50.	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.  In Sandwell & West Birmingham Hospitals NHS Trust V Mrs A Westwood [2009] UKEAT/0032/09/LA, the EAT took the view that what is, or is not, 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: 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.

51.	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.  The 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”.

52.	The tribunal also considered the recent Northern Ireland Court of Appeal case of Caroline Connolly V Western Health and Southern Care Trust.  At paragraph 7 of the judgment , Lord Justice Deeny stated:

“The question for that tribunal was whether “in the circumstances … the employer acted reasonably or unreasonably in treating [the reason for dismissal as a sufficient reason for dismissing the employee” But they must determine that “in accordance with equity and substantial merits of the case” per Art 130(4) (b).  They should have asked themselves therefore when deciding whether the reason justified summary dismissal whether that was equitable and merited for that is what the statute requires”. 

53.	At paragraph 22 of the above judgment, Lord Justice Deeny also commented on whether it is correct to consider whether a lesser sanction than dismissal would have been appropriate.  He stated:

 “I do not see how one can properly consider the equity and fairness of the decision without considering whether a lesser sanction would have been the one that right thinking employers would have applied to a particular act of misconduct.  How does one test the reasonableness or otherwise of the employer’s decision to dismiss without comparing that decision with the alternative decisions?  In the context of dismissal the alternative is non-dismissal i.e. some lesser sanction such as final written warning”.

APPLICATION OF THE LAW TO THE FACTS FOUND

54.	The tribunal finds that the conduct of the claimant in failing to pay for her drink before consuming it, did amount to misconduct.  The tribunal also finds that the untruth which the claimant told to the respondent when questioned on whether she had paid for the drink was also misconduct and did undermine the relationship of trust and confidence between employee and employer.  It is hard to understand how the claimant could have forgotten that she had not paid for the drink when the incident with the other staff member regarding payment had occurred less than an hour previously.  The tribunal finds that the claimant deliberately mislead the respondent and hoped to muddy the waters around payment by saying that she had paid the other employee.  It is probable that she knew that she had not paid for the drink when she was asked about it and she also knew that it was against company policy not to have done so.  She understood that her employer would be less than happy with the situation although we are quite sure she did not envisage that it would lead to her dismissal.  We did not find however, that the claimant did not intend to pay for her drink on her return to the café.  We noted the short period of time which had elapsed between her return to the café and the questioning by the respondent.  We accepted the claimant’s explanation that she had immediately started to clean up a leak in the under-counter fridge and had not had time to pay for the drink.

55.	Having found that the claimant was guilty of misconduct, the tribunal then went on to consider whether the decision fell within the band of reasonable responses open to an employer and whether the decision to dismiss was in accordance with the equity and substantial merits of the case.

56.	The tribunal found the following mitigating factors in the claimant’s favour:

57.	The policy was not clearly highlighted to the claimant.  Although the claimant accepted that the policy was on view on the fridge door and the claimant accepted that she understood the policy during the disciplinary hearing, it is clear that she did not expect that her actions would lead to instant dismissal.

58.	The policy was introduced in September 2016.  This was obviously a new departure and the tribunal felt that this policy should have been sent to each employee individually.  It was incumbent on the employer to ensure that each employee was aware of the new policy and the sanctions for failure to follow the procedure.

59.	The respondent did not provide the tribunal with a copy of the employee’s Contract of Employment.

60.	There was very little time for the claimant to pay for the drink on her return to the Café and before she was questioned regarding the drink.

61.	The claimant had tried to pay for the drink before consuming it and it was only due to a combination of her having no change and the other employee being too busy to change the larger note which led to the claimant taking the drink before paying for it.

62.	Telling an untruth to the employer is a serious matter but the claimant may well have been caught unawares.  She was approached by her boss whilst she was on the floor cleaning a piece of apparatus.  She was placed at a disadvantage and she may well have felt embarrassed in front of other staff.  

63.	Taking all of the above into account the tribunal felt that the decision to dismiss was not in accordance with the equity and substantial merits of the case.  The respondent failed to consider adequately the remedies available to it short of dismissal and failed to make sufficient allowance for the fact that this was the first offence of this nature.  We therefore find that the claimant was unfairly dismissed.

THE LAW RELEVANT TO REMEDY

64.	Where a tribunal finds the grounds of complaint of unfair dismissal are well-founded the Orders it may make are set out at Article 146 ERO and include reinstatement, re-engagement and otherwise compensation.  How compensation is to be calculated is set out in Articles 152 to 161 ERO.  The starting point for the calculation of the compensatory award is Article 157 (1) ERO:

‘(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’.

65.	The compensatory award should not be increased out of sympathy for the claimant or to express disapproval of the respondent.  The claimant has a duty to mitigate his loss and the onus is on the respondent to show the claimant as unreasonable in the steps taken or not taken to do so.  The compensatory and basic awards may be reduced (Articles 156(2) and 157(6) ERO) where the claimant was guilty of blameworthy conduct that contributed to the employer's decision to dismiss and the tribunal considers it just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.

FINDINGS OF FACT RELEVANT TO REMEDY

66.	By her actions, the claimant has contributed to her own dismissal and her conduct has been blameworthy.  The lesser offence was to take the drink without paying for it prior to consumption but the compounding factor was her failure to own up to this when challenged by her employer.  The tribunal considers that a reduction of 50% is in accordance with the justice and equity of this case.

67.	The claimant has a duty to mitigate her loss.  We note that the claimant’s salary is currently £95.75 less per week and we have allowed this sum to the date of hearing.  However, the tribunal was not convinced that the claimant could not find alternative work at a salary equivalent to her salary with the respondent.  The tribunal believes that the claimant has made a lifestyle choice not to work the longer hours she was working with the respondent.  We do not believe it appropriate to make any award for future loss.

68.	The tribunal notes that the claimant has a small website business selling cakes and crafts.  The tribunal considered the evidence regarding the claimant’s business.  The tribunal found the claimant deliberately vague regarding her earnings from her website business.  She was evasive about the extent of the business and any profits arising.  Having considered all the evidence, the tribunal felt it appropriate to attribute a profit of £500.00 to the claimant from her business during the 26 weeks since being dismissed.

REMEDY

69.	Taking into account the above, the tribunal awards the following:

(1)	Basic Award- under Article 153 ERO :-

			2 years x 1x £250.00	=					£500.00

Less 50 % reduction for conduct Article 156(2) ERO 	         - £250.00

£250.00

(2)	Compensatory award – under Article 157 ERO:- 

(i)	Loss of earnings EDT to date of hearing:

26 weeks @ £95.75 (being the difference between payment from respondent’s employment and current employment)		£2489.50

Less £500.00 from website business		         -	£500.00

The loss of earnings is therefore				£1989.50

(ii)	Future loss, no award appropriate as the appellant appears to have made a decision to work lesser hours for less pay and the tribunal believe that the claimant could have obtained employment by this stage on a level equal to her employment with the respondent.
					
(iii)	Loss of statutory rights,  say					 £250.00

 £2239.50

	Less 50 % reduction for conduct  	                              -	£1119.75

										£1119.75

Total Award: £250.00 + £1119.75	=			£1369.75

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

Employment Judge:

Date and place of hearing:  6 November 2017, Belfast.       

Date decision recorded in register and issued to parties: