Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  5963/18

 

 

CLAIMANT:                          Jamie Elliott

 

RESPONDENT:                  RMS Cash Solutions Limited     

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:                      Employment Judge Orr

 

Members:                                         Mr H McConnell

                                                            Mr I Foster

 

 

Appearances:

 

The claimant was a litigant in person.

 

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Millar McCall Wylie LLP Solicitors.

 

 

CLAIMS

 

1.         The claimant claims he was unfairly dismissed, the respondent disputes this and asserts the claimant was fairly dismissed by reason of his conduct.

 

SOURCES OF EVIDENCE

 

2.         The tribunal heard evidence from the claimant on his own behalf. 

 

3.         On behalf of the respondent the tribunal heard evidence from Mr Ciaran McGivern (Commercial Director), Mr Tom Mulholland (Managing Director (NI)), Mr Tony McAleenan (Finance Director), Mr Trevor Watson (Group Head of Security and Risk) and Mr David Neale (Security Manager). 

 

4.         The tribunal considered all the evidence and information presented to it and in arriving at its conclusions took account of all relevant aspects of that evidence. 

RELEVANT LAW

 

5.         Unfair Dismissal

 

            Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides insofar as is relevant to these proceedings;-

 

                        “130 (1)   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 principal reason) for the dismissal and

 

                                        (b)       that 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. 

 

                                    (2)                                           a reason falls within this paragraph if it –

 

                                        (b)       relates to the conduct of the employee,

 

                               (4)     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.”

 

6.         The test to be applied in the case of an alleged misconduct dismissal is known as the “Burchell Test” or the “band of reasonable responses” test.  This was confirmed by the Northern Ireland Court of Appeal in Rogan v South Eastern Health and Social Care Trust (2009) NICA 47 in approving the Court of Appeal decision in Dobbin v Citybus Limited (2008) NICA 42: -

 

“(49)    The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLC (formerly Midland Bank) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111. 

 

(50)    In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

            “Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

                                    (1)       the starting point should always be the words of [equivalent GB legislation] themselves;

 

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

 

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

 

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

 

                                    (5)       the function of an 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.  ”

                                   

(51)     To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question ………………. 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, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the Tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

 

7.         The recent Northern Ireland Court of Appeal case Connolly –v- Western Health and Social Care Trust 2017 (NICA) 61 held:

 

            “The question in each case is whether the Industrial Tribunal considers the employer’s conduct to fall within the band of reasonable responses”.

 

            “The interpretation of what, in this jurisdiction, is Article 130(4) (a) of the 1996 Order has been fixed by a series of Appellant Courts over the years, ie, that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would make.  That test, expressed in various ways, is too long established to be altered by this Court, and in any event has persuasive arguments in favour of it.  But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie, that that decision ‘shall be determined in accordance with equity and the substantial merits of the case’ …”.

 

8.         Harvey on Industrial Relations and Employment Law, Division D1 Paragraph 1461:- 

 

            The requirement to hold such investigation as is reasonable in all the           circumstances is only really applicable where misconduct is suspected.  Clearly if the employee admits that he has committed the misconduct, there is little purpose in carrying out any investigations.  The employer will then be acting reasonably in believing that the misconduct has been committed … .  However, if there is still some doubt as to the intention of the employee, then some form of investigation will normally be appropriate even if the physical elements of the offence are admitted: (see John Lewis Plc v Coyle (2001) IRLR 139). 

 

9.         In the case of Gray Dunn and Co. v Edwards (1980) IRLR 23, Lord McDermott   stated:

                                    “It is now well settled that common sense places limits upon the degree of investigation required of an employer who is seized of information which points strongly towards the commission of a disciplinary offence which merits dismissal”.

 

Automatic Unfair Dismissal

 

10.       Article 130A of the Employment Rights (NI) 1996 Order provides:

 

                        “(1)      an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

 

                                    (a)       one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

                                    (b)       the procedure has not been complied with; and

 

                                    (c)        the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

 

                        (2)       Subject to Paragraph 1 failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) 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.

 

                        (3)       For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order”. 

 

  11.    The statutory procedures in the above-mentioned legislation require employers, subject to certain exemptions (not applicable to this case), to follow specific procedures when subjecting employees to disciplinary action or dismissal, namely:-

 

                        “(a)      standard dismissal and disciplinary procedures (‘DDP’); or

 

                         (b)      a modified DDP.”

 

            The latter procedure was not relevant in this case.

 

            The standard DDP is set out at Paragraphs 1–3 of Schedule 1 of the 2003 Order as follows:-

 

“(i)       Step 1 –

 

A statement of grounds for action and invitation to meeting –

 

 (1)      The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 

 (2)      The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

 

Step 2 – Meeting

 

(1)       The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

 

                                    (2)       The meeting must not take place unless –

 

                                   (a)       the employer has informed the employee what the basis was for including in the statement under Paragraph (1) the ground or grounds given in it; and

 

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

 

                                    (3)       The employee must take all reasonable steps to attend the meeting.

 

                                    (4)       After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

 

                                    Step 3 – Appeal

 

                                    (1)       If the employee does wish to appeal, he must inform the employer.

 

                                    (2)       If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

 

                                    (3)       The employee must take all reasonable steps to attend the meeting.

 

                                    (4)       The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

 

                                    (5)       After the appeal meeting the employer must inform the employee of its final decision.”

 

(ii)        There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-

 

                                                “Introductory

 

                                                           (11)     The following requirements apply to each of the procedures set out above (so far as applicable)

 

                                                 Timetable

 

                                                            (12)    Each step and action under the procedure must be taken without unreasonable delay.

 

                                                 Meetings

 

                                    (13)     (1)      Timing and location of meetings must be reasonable.

 

                                                 (2)      Meetings must be conducted in a manner which enables both employer and employee to explain their cases.

 

                                                  (3)      In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”

 

12.      Failure to comply with the relevant statutory dismissal procedure impacts on compensation in relation to a claim of unfair dismissal – an adjustment upwards in the case of default by the employer or an adjustment downwards in the case of default by the employee.     Articles 17(2) and 17(3) of the Employment (NI) Order 2003, provide that the tribunal must adjust any award by at least 10% and if the tribunal considers it just and equitable, in the circumstances, up to 50%.  Under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable.  Any potential uplift or reduction is limited to the compensatory award only.

 

 

13.      The EAT in Alexander v Bridgen (2006) IRLR 422 set out the relationship between the statutory procedures and fair or unfair dismissal as follows:

 

            (1)       if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is the chance of dismissal was more than 50%, the dismissal is fair;

 

            (2)       if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made;

 

            (3)       if no statutory procedures were followed there is automatic unfair dismissal and four weeks’ pay is the minimum which must be paid and can be increased by 10 to 50% unless the award of four weeks’ pay would result in injustice to the employer. 

 

14.       Article 154 of the Employment Rights (Northern Ireland) Order 1996 provides for a minimum basic award:

 

                        “1 (A)  Where -

 

(a)          an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), and

 

the industrial tribunal shall, subject to paragraph 1(B), increase the award under 152 (1) (a) to the amount of four weeks’ pay.

 

                        (6)       An industrial tribunal shall not be required to make an award under paragraph (1A) if it considers that such an award would result in injustice to the employer.”

 

Contributory Conduct

 

15.       Article 156(2) of the Employment Rights (NI) Order 1996 provides:

 

                        “Where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

 

            Article 157(6) of the Employment Rights (Northern Ireland) Order 1996 provides:

 

            “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

 

16.       If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, both the basic award and compensatory award must be reduced by the same percentage -  McFall v Curran (1981)  NICA.

 

17.       If the employee is wholly to blame for the dismissal compensation may be reduced by 100% Hollier v Plysu Limited (1983) IRLR 260.

 

18.       In the case of Steen v ASP Packaging Ltd (2014) ICR 56 the EAT held that the correct approach for the tribunal is to:

 

(1)       identify the conduct which is said to give rise to possible contributory fault

(2)       decide whether that conduct is culpable or blameworthy, and

(3)       decide whether it is just and equitable to reduce the amount of the basic award to any extent.

 

“Polkey” Deduction

 

19.       The House of Lords held in Polkey v Dayton Services Ltd (1987) 3 ALL England ER 974 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 the employer can satisfy the tribunal that following the procedures correctly would have made no difference to the outcome.

 

20.       In the case of Software 2000 Ltd v Andrews (2007) UKEAT/0533/06, Elias J gave guidance on this issue: -

 

                        “54      (1)       In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

                                    (2)       If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.  (He might, for example, have given evidence that he had intended to retire in the near future.)

 

                                    (3)       However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

                                    (4)       Whether that is the position is a matter of impression and judgment for the tribunal.  But in reaching that decision the tribunal must direct itself properly.  It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise.  The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

RELEVANT FINDINGS OF FACT

 

21.      The respondent company operates a cash management and secure transit cash service for companies within the financial services sector.

 

22.      The claimant was employed by the respondent as a Secure Area Operator from 20 May 2016 until his summary dismissal on 9 March 2018. 

 

23.      The claimant had a clear disciplinary record prior to the events which resulted in his dismissal.

 

24.      The respondent’s Employee Handbook contains a “Safeguards” Policy which sets out the following:

 

                        “Use of Social Networking Sites

 

                        Any work related issue or material that could identify an individual who is a customer/client or work colleague, which could adversely affect the company, customer/client or our relationship with any customer/client must not be placed on a social networking side.  This means that work related matters must not be placed on any such site at any time either during or outside of working hours and includes excess via any computer equipment, mobile telephone or PDA.

 

                        “Telephone calls/company mobile telephone”

 

                        Telephones are essential for our business.  Incoming personal telephone calls are allowed only in the case of emergency.  Outgoing calls can only be made with the prior permission of Management.  Company mobile telephones are for business use only, except in the case of emergency.  Excessive personal use will result in the Company deducting the cost from your wages.  This is an express written term of your employment.  Company mobile telephones are not to be used while in transit in a Company vehicle”.

 

25.      The claimant received induction training and signed an induction checklist on 20 May 2016; this document contained the wording “I have read and understand the current Employee Handbook.  I accept that it forms part of my Contract of Employment and I will keep myself informed of its contents”.

 

26.      The tribunal was provided with photographs of the door and entrance area within which the claimant worked.  The notice board contained very prominent signage indicating no cameras/photography and a large sign which contained the words “NO PHOTOGRAPHS BEYOND THIS POINT”.  The entrance door to his work area had a sign attached to it with the wording “Do not use mobile telephones” and a red safety sign of a mobile telephone crossed out.

 

27.      It was the respondent’s evidence that “tiger kidnapping” was a very real risk in this industry and that tiger kidnapping training is essential to ensure that employees and their families are safeguarded.  Mr Neale was the Security Manager within the respondent organisation from September 2011 until June 2018 and was responsible for ‘tiger training’ within the respondent company.  His evidence was that social media contributed to the risk of tiger kidnapping.  He worked with the Organised Crime Task Force which highlighted that criminals identify persons of interest to them through social media.  Mr Neale’s evidence was that criminals specifically target staff members of cash centres and financial institutions by holding their family hostage.  He stated that this kind of activity had been prevalent in Northern Ireland since the early 1970s.  He stated that tiger kidnapping training was an essential way of bringing attention to members of staff of the potential irreparable damage to them and their family members.  He confirmed the claimant had received tiger kidnapping training on 10 January 2017 and 20 May 2016.  The claimant disputed that he had received tiger kidnapping training in 2016 but accepted that he had received the training in 2017.  The training identified the following risks:

 

                 1.      Going home wearing work uniform.

 

                 2.      Having the same workplace route every day.

 

                 3.      Having lunch or coffee in the same shop.

 

                 4.      Using social media.

 

                 5.      Forms of identification highlighting place of work.

 

28.      The events which led up to disciplinary action being taken by the respondent were not disputed by the claimant.  Mr Neale had been provided with a number of photographs of “Snap Chat” entries.  These were a series of “selfies” of the claimant that clearly identified him and each photograph had a text message under it:

 

            (ANONYMISED BY THE TRIBUNAL)

 

                        ‘we’ve a polish temp working today; lovely fella from (­_) called (_)’

 

                        ‘he’s a (_) (momday) (sic) to Friday’

 

                        ‘Ive brought him down to my level of doing fuck all in work’

 

                        ‘I do fuck all in work’.

 

29.      Mr Neale undertook an investigation and as part of his investigation he viewed company CCTV footage which showed the claimant using his mobile telephone within a secure area on 14 January 2018.

 

30.      The tribunal was provided with copies of the “Snap Chat” photographs/entries and still images of the CCTV footage.  The claimant is clearly visible in each photograph and the company logo was visible in at least one photograph.  Each “Snap Chat” selfie contained a line of text as set out above at paragraph 28 and included the name of the fellow employee, his country/city of origin and his job title.  The tribunal has anonymised these details for the purpose of these proceedings.

 

31.      The claimant was suspended by letter dated 1 February 2018.  An investigation meeting took place on 16 February 2018.  The investigation meeting was conducted by Mr Tony McAleenan; at the meeting he pointed out to the claimant:-

 

            “you can see the RMS logo, you name another member of staff, you can see the tiger kidnapping posters in the background which are in the toilets”. 

 

The claimant replied

 

            “I grossly apologise for that and please pass on my apologies to him … I was acting the big lad with what I believed was a closed group of friends”.

 

32.      The claimant was invited to a disciplinary hearing by letter dated 19 February 2018; he contacted Mr Tom Mulholland to advise that he could not attend as he was attending a funeral.  A letter dated 21 February 2018 was sent by the respondent rearranging the meeting to 7 March at 10.00 am.  The claimant contended that he did not receive this letter and as a consequence did not attend the meeting.  The meeting proceeded in his absence and the claimant was dismissed by letter dated 8 March 2018.  The tribunal is not persuaded, for reasons set out elsewhere in this judgment that the claimant did not receive this correspondence. 

 

33.      The reason for dismissal was confirmed as follows:

 

                            “your employment with the Company will be terminated due to a finding that you breached a number of company policies including the social media policy, confidentiality policy, and use of mobile telephone policy which incurred significant risk to the organisation including a risk to security, safety and the reputation of the organisation”. 

 

34.      The claimant appealed his dismissal by letter dated 12 March 2018 and attended an appeal hearing on 9 April 2018.  The claimant’s grounds of appeal in essence were that other employees had been treated more leniently and that the respondent was inconsistent in its treatment of him.  During the appeal meeting the claimant stated:

 

                            “I believe I should have been given a final written warning.  I came today to show you your shortcomings.  I have a few more points.  …  In my grievance I brought up numerous people doing the same”.

 

35.      Mr McGivern in his appeal outcome, dated 2 April 2018, considered the individuals named by the claimant, who the claimant alleged had been treated differently than him; (their names have been anonymised by the tribunal as their identity is not relevant to these proceedings).  Specifically, the claimant identified a Mr ‘B’ (ATM engineer) who was not an employee of the respondent; he was permitted to have a mobile telephone in work for business reasons and played a video on his mobile telephone on the respondent’s premises, for non-business reasons, for which he was verbally reprimanded at the time.  The claimant also referred to a Mrs ‘C’ having a mobile telephone in the workplace, however the respondent’s evidence, which was not disputed by the claimant, was that it was a requirement for her role and authorised by the respondent.  In summary, anyone identified by the claimant, was in fact authorised by the company to carry and use a mobile telephone for the purposes of their role.

 

36.      The claimant also referred to a posting on Facebook by one of two drivers of the respondent.  The posting was a “selfie” at a sporting event at which both employees were working.  The tribunal was presented with a copy of the Facebook posting.  There was nothing legible in the posting that identified the individuals as employees of the respondent or indeed identified that they were at work, there were no posters or notices in the background and no company logo visible or identifiable in the photograph.  The respondent confirmed that the two individuals were not subject to a disciplinary investigation or process.

 

37.      The claimant raised a grievance on 16 February 2018 alleging that the copies of the images on “Snap Chat” which were the subject of the disciplinary process had been taken without his consent and that in providing these copies to the employer, an employee of the respondent had placed the claimant’s security at risk and breached his data protection.  The grievance was considered at the disciplinary hearing and was not upheld.  Mr Tom Mulholland specifically stated in the disciplinary outcome letter “I am satisfied that your employer did not take the images but have stored and considered them in an appropriate confidential way once they were provided to the organisation.  I do not believe any actions the company took impacted on your privacy as you had posted the photographs which you had taken”.

 

38.      The claimant alleged in his witness statement that he had received a letter dated 1 March 2018 as follows:

 

                        “Dear Jamie

 

                        Further to the resignation of your employment from the Company, effective from 9 March 2018 and confirmation that all Company property has been returned, your final pay will be transferred to your nominated bank account on 29 March 2018.

 

                        See enclosed your P45 and final payslip.

 

                        May I take this opportunity to wish you every success for the future”. 

 

39.      Mr Tony McAleenan, accepted in cross-examination that this was a “pro forma” letter incorrectly worded and containing a typographical error in the date.  His evidence was that it had been sent on 1 April 2018 to the claimant enclosing his P45.  The P45 was dated 27 March 2018.  The tribunal accepts Mr Tony McAleenan’s evidence in this regard and although the letter does incorrectly refer to a resignation, this was not, in fact, the position and it was never alleged by the respondent or the claimant that he had resigned.  At the appeal hearing on 9 April 2018 the claimant stated:

 

                        “I got this letter dated 1 March which says “further to your resignation” I didn’t resign, I’ve been stitched up.  It’s a witch hunt.  I wasn’t sacked until 8 March so what does that tell you?  I was sacked 8 March, I received that letter 10 March then on 1 April I received this resignation letter dated 1 March, why?”  (tribunal emphasis).

 

40.      The tribunal is satisfied that this letter was sent on 1 April 2018 and was received by the claimant within a few days thereafter. 

 

41.      It was the claimant’s evidence in his witness statement and throughout his
cross-examination of Mr McAleenan and Mr Mulholland he maintained that he received this letter on 3 March 2018.  He relied on this as evidence of collusion on the part of the respondent’s employees to “ensure that he would not have a fair and honest hearing”.  However under cross-examination the claimant ultimately accepted that he did not receive this letter on 3 March 2018 but had received it in April 2018. The tribunal concludes that it is clear from the claimant’s own assertion at the appeal hearing on 9 April 2018 that he received the letter in April 2018 and not in March as he has sought to argue in his case.  The claimant’s inconsistent evidence and continued pursuit of this point in cross-examination gave the tribunal panel considerable cause for concern in relation to the claimant’s credibility in general. 

 

42.      Throughout the hearing, the claimant asserted that unless proof by way of documentation existed, then a fact could not be established.  The claimant persistently argued that unless documentary evidence or “evidence in black and white” existed then a fact was not proved. 

 

43.      The appeal outcome did not uphold the claimant’s appeal and the claimant was offered the opportunity of a further meeting.  The appeal outcome of Mr McGivern, stated:

 

                        “my decision is to request that the disciplinary hearing is reconvened to facilitate your personal attendance.  You will receive an invitation to attend this meeting I would expect you to make yourself available to do so”. 

 

                        This will provide you with the opportunity to personally present your point of view and have a decision made on that basis by a further objective decision maker”. 

 

44.      It was Mr McGivern’s evidence that this was an offer to the claimant of a second opportunity to attend a face-to-face meeting.  He stated that he believed, on the balance of probabilities, the claimant had received the invite to the disciplinary hearing dated 21 February 2018, he stated that rather than leave a “procedural weakness”, on the part of the company, he was providing the claimant with a further right of an appeal.

 

45.      The claimant did not avail of a further meeting; it was his assertion that he had no legal obligation to attend any further meetings as he was not an employee of the respondent, had not been reinstated and was not ‘recognised as a member of staff”.

 

CONCLUSION

 

46.      The main thrust of the claimant’s case was that whilst he fully accepted that he had been guilty of misconduct, others were treated more leniently.  It was clear from the evidence that those individuals identified by the claimant were not treated leniently in comparison to the claimant because their alleged misconduct did not amount to such a serious breach of the respondent’s rules.  Specifically:-

 

Ÿ          they had not identified a fellow employee by name, job title or country of origin in any social media posting.

 

Ÿ          they had not posted “Snap Chats” with the company name or logo clearly visible or legible.

 

Ÿ          they had not put at significant risk the safety of any other employee.

 

47.      The conduct which resulted in the claimant’s dismissal was the taking of photographs, in a secure area, which identified him as an employee of the company, the respondent’s logo was clearly displayed in the “selfie” photograph and was uploaded by the claimant on the social media platform “Snap Chat”; he had identified a fellow employee by name, job title and national origin.  The claimant had not identified any employees who had committed similar acts of misconduct or were in similar circumstances to the claimant.

 

48.      The claimant did not dispute his conduct and the tribunal is therefore satisfied that the reason for the dismissal was conduct, a potentially fair reason under Article 130(2) of the Employment Rights (Northern Ireland) Order 1996. 

 

49.      The tribunal finds that the respondent had reasonable grounds for suspecting the claimant was guilty of gross misconduct and the respondent carried out an investigation, including holding an investigatory meeting at which the claimant fully accepted he had committed acts of misconduct and apologised for same. 

 

50.      The tribunal finds that the respondent’s decision to dismiss for gross misconduct is within the band of reasonable responses and the employer acted reasonably in treating his conduct as a sufficient reason for dismissing him.  The claimant’s conduct amounted to gross misconduct and warranted summary dismissal in all the circumstances.  It was Mr Tom Mulholland’s evidence that the safety of staff is paramount and any risk to this is rightly subject to disciplinary action and can lead to dismissal.  He concluded that the breach was serious and blatant, incurring significant risk and the claimant fully accepted this in cross-examination.  The tribunal found that this was a reasonable belief on the part of the respondent. 

 

51.       The tribunal finds that any reasonable employer in the circumstances of this case would have been entitled to conclude that gross misconduct had occurred and that summary dismissal was the appropriate decision.  The misconduct was a clear breach of the company’s policies on the use of social networking sites and on the use of mobile telephones especially given the nature of the “cash in transit” industry and the real and serious risk in this industry of tiger kidnapping.  This was a decision the employer was entitled to take.  The claimant accepted that he had received training in tiger kidnapping and accepted in cross-examination that the area within which he worked contained very clear notices on boards indicating “no photography beyond this point”, together with signs prohibiting photography and signs stating “Do not use mobile telephones” in the area in which the claimant had taken the “Snap Chat” “selfies”.  The claimant’s claim of “ordinary” unfair dismissal fails.

 

52.       The claimant also argued that his dismissal was automatically unfair or “technically” unfair in that he alleged that the respondent had not complied with the requirements of the statutory dismissal procedures specifically that he had not received a Step 1 letter namely the letter dated 21 February 2018 rearranging the disciplinary hearing at the claimant’s request.

 

53.       Taking in the consideration the findings of fact set out above, the tribunal finds that the respondent was not in breach of the statutory dismissal procedures for the following reasons:-

 

·         The claimant was sent a letter which he did not dispute receiving on 19 February 2018 and he was invited to attend a meeting to discuss the matter.  The tribunal finds that this complies with Step 1.

 

·         The claimant stated throughout that he did not receive the letter dated 21 February 2018 which was a rescheduling of the disciplinary meeting.  The evidence of Mr McGivern was that the respondent had sent the letter and reasonably believed it had been received.  Given the tribunal’s findings in relation to the claimant’s credibility, the tribunal is satisfied that the letter was sent to the claimant; every other letter sent to the claimant at the same address had been received by the claimant.  A meeting was held and the claimant was provided with an outcome.  Accordingly Step 2 of the statutory procedures have been complied with. 

 

·         The claimant appealed and was provided with an outcome of the appeal therefore Step 3 of the statutory procedures have been complied with.

 

54.      The tribunal is satisfied that the statutory procedures have been complied with by the respondent and that the claimant was given a full opportunity to respond to the disciplinary charges.  The tribunal finds that the decision to dismiss the claimant was within a band of reasonable responses in all the circumstances of the case and was a reasonable decision for the employer to take.  The dismissal was therefore technically and substantively fair.

 

55.      The claimant’s claim of unfair dismissal is dismissed.

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  19-21 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: