THE INDUSTRIAL TRIBUNALS
CASE REF: 1796/07
CLAIMANT: Alan Wade
RESPONDENTS: Miss Grace Orbinson sued on her own behalf and on behalf of all other members of the Executive Committee of Mid Antrim Animal Sanctuary at the relevant time
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed, and that the basic and compensatory awards both be reduced by 100%.
Constitution of Tribunal:
Chairman: Mr Palmer
Members: Mr Boyd
Mr Miller
Appearances:
The claimant was represented by Ms Hyndman, Barrister-at Law, instructed by Harry Mc Partland, Solicitors, represented the Claimant in the application in respect of the amendment to the title of the proceedings and then withdrew. The claimant was thereafter represented by Mr Peter Button.
The respondents were represented by Mr Todd, Barrister-at Law, instructed by Conway Todd & Company, Solicitors.
Title
- At the commencement of the hearing the title to the proceedings was amended on the application of Ms Hyndman, from:
"Claimant: Alan Wade
Respondent: Mid Antrim Animal Sanctuary"
to,
"Claimant: Alan Wade
Respondents: Miss Grace Orbinson, sued on her own behalf and on behalf of all other members of the Executive Committee of Mid Antrim Animal Sanctuary at the relevant time."
The claimant's claims
- The claimant claimed that he had been unfairly dismissed by the Respondents and also claimed for outstanding holiday pay.
Holiday pay
- During the course of the hearing the claimant, through Mr Button, accepted that he received all holidays due to him: his claim in respect of holiday was not pursued.
Witnesses
- The Respondents: Evidence was given, on behalf of the respondents, by Miss Grace Orbinson, a member of the Executive Committee, Miss Diane Wilson, an office employee at the Sanctuary, Mr Jonnie Mitchell, an Executive Committee member, a volunteer at the Sanctuary and a fund-raiser, Mr George Anderson, the Honorary Secretary and Executive Committee member and Mrs Jenny Ackerley, an Executive Committee member.
- The Claimant: The claimant did not give evidence. Evidence was given on his behalf by Mr Stephen O' Neill, who was Chairman of the Executive Committee at the relevant times.
Documents
- A bundle of documents was provided by the respondents. It was explained to the parties that only documents referred to would be considered by us.
The Mid Antrim Animal Sanctuary
- The Mid Antrim Animal Sanctuary (the Sanctuary) is an unincorporated association. In a nutshell, its function is to promote animal welfare. It has a staff of 5 (including managers). It is supported in its work by volunteers and has an Executive Committee of 12.
Unfair dismissal
- By a combination of Articles 126 (1) and 140 (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) an employee, who has been continuously employed for a period of not less than one year, ending with the effective date of termination of the contract of employment, has the right not to be unfairly dismissed. The claimant meets these criteria.
The facts
- The claimant commenced employment with the respondent on 28 September 1998. He worked as a Kennel Assistant. The claimant's IT1 states that the employment ended on 21 July 2007. The respondents, in their response, agree. However, the letter terminating the claimant's employment is dated 23 July 2007 and purports to terminate the employment with effect from 21 July 2007. We consider that the letter of termination would have been received by the claimant on 25 July 2007 and that his employment, therefore, terminated on that date. We find, therefore, that the period of the claimant's employment with the respondents was from 28 September 1998 until 25 July 2007.
- Miss Diane Wilson (Miss Wilson) is an employee of the respondents. She works at the Sanctuary in a secretarial capacity and was employed there on 23 May 2007.
- Mr Jonnie Mitchell (Mr Mitchell) is disabled. As previously stated he is an Executive Committee member and also a volunteer with the Sanctuary. He had left the sanctuary's premises approximately 15 minutes before the remarks referred below were made.
- Miss Wilson made a complaint of serious misconduct by the claimant, which alleged conduct occurred on Wednesday 23 May 2007. The complaint was that (and the following is taken from a written statement which Miss Wilson provided to the respondent and which she read to us under oath):-
"At approximately 3:30 pm Margaret Wade [this is Mrs Margaret Wade, the Sanctuary Manager and who is the Claimant's aunt] and I took an afternoon tea break at the summer seat by the front gate. Alan Wade and Shane Steele were already there. Before I sat down Alan enquired: "Where's your wee friend?" I said "who" Alan replied, "that wee E.T. Bastard". I still didn't know who he was referring to, so I said "who do you mean?" Alan named Jonnie Mitchell, which shocked me, and then I questioned why he called him that, he mimicked the way Jonnie holds his disabled arm, motioning a pointed finger (like "E.T. the extraterrestrial" in the film). Alan began to laugh and looked at Shane, who made an "Ooohh" sound, which I felt he found the remark 'low'."
- Miss Wilson prepared the statement referred to on the evening of 23 May 2007. Before submitting it to the respondents she consulted a number of people connected with the Sanctuary. She consulted with the Sanctuary's Deputy Manager, Mr Mc Cartney, who advised her to submit her complaint. She spoke to Mr O' Neill on the 24th and also to 3 other Executive Committee members on that date, including Miss Grace Orbinson (Miss Orbinson) and Mrs Jenny Ackerely (Mrs Ackerley). She also telephoned Mr Mitchell on 24 May 2007 and informed him of what had occurred on the previous day. Mr Mitchell was initially "numbed with shock and rage" and was "extremely shocked". Miss Wilson submitted the statement to the respondents on 25 May 2007. She did so by way of email to Miss Orbinson.
- The respondents rightly regarded the allegations as a very serious matter. They have many volunteers who are disabled in one way or another.
- On 27 May 2007, a meeting (the May meeting) was held at the Sanctuary. Present were Mr George Anderson (Mr Anderson), Executive Committee members Miss Orbinson, Mrs Ackerley, the claimant and Mrs Margaret Wade (Mrs Wade). The purpose of the meeting was (as recorded in the minutes), "Because of the seriousness of the complaint the above named committee members [Mr Anderson, Miss Orbinson and Mrs Ackerley] met at the sanctuary with a view to suspending Mr Wade until such time as a full investigation could be made." At this meeting the claimant was given the gist of the allegations made against him by Miss Wilson. He was informed that an investigation would be instigated into the allegations and that he would be suspended on full pay "until the matter is resolved." At this meeting the claimant claimed that Miss Wilson was lying. Miss Orbinson said that any allegations the claimant had to make would be looked into.
- On 28 May 2007, Mr Anderson wrote to the claimant informing him that because of the seriousness of the allegations made the sub-committee regretted that, "we must suspend you from duty with pay until such times as these matters are resolved". The letter of the 28th also requested that, in order that the allegations could be properly investigated, the claimant provide a written statement as to the events that occurred on 23 May 2007.
- On 2 June 2007, statements were obtained from Mrs Wade and
Mr Shane Steele (Mr Steele). Mr Steele said that he had no recollection of the conversation that took place between the claimant and Miss Wilson at the relevant time: he was not paying attention. We shall refer to Mrs Wade's statement later.
- The claimant wrote to Mr Anderson, by way of letter dated 5 June 2007, in response to Mr Anderson's letter of 28 May 2007. In his letter the claimant wrote:
"During a working break a number of employees general conversations were taking place and I asked Diane [Miss Wilson] if Johnny [Mr Mitchell] had gone ET. She replied yes he had."
The letter continued:
"I feel that she [Miss Wilson] has brought an accusation to the committee's attention due to the fact that I mentioned to other staff that Diane was not arriving to work in time and that she was only answering the blue phone throughout most of the day, also she was always on the computer for personal use and watched the camera for members of the committee arriving in order to switch to work related matters on the computer."
- On 26 June 2007, Mr Anderson wrote to the claimant to say that a sub-committee had been appointed to deal with the allegations made. The letter went on to invite the claimant to a meeting on 1 July 2007 to deal with the allegations made and to hear his side. The claimant did not attend. On 1 July 2007 Mr Anderson again wrote to the claimant inviting him to a meeting on 8 July 2007 for the same purposes as those contained in the letter of 1 July 2007.
- The claimant attended the meeting fixed for 8 July 2007. Mrs Wade also attended. The meeting was an investigatory one, the matter still being, at that stage, under investigation. The sub-committee consisted of Mr Anderson, Mrs Ackerely and Ms Heather Roberts. At this meeting the claimant was provided with copies of the statements made by Miss Wilson, Mr Steele and Mrs Wade and given time to consider them. He denied the allegations made. With regard to his admitted reference to ET in his letter of 5 June 2007, namely, where he states that he asked, "if Johnny [Mr Mitchell] had gone ET", he meant, as in the film, gone home. In other words, he was asking if Mr Mitchell had gone home. The claimant, during the course of the meeting referred again to his letter of 5 June 2007. He referred to that part where he questions Miss Wilson's motive in making the allegations.
Mrs Ackerley told him that he could not discuss "any of that". So, contrary to what Miss Orbinson said at the May meeting, the claimant's allegations were not to be investigated.
- At the May meeting, Mrs Wade at first denied any knowledge of any occurrence on 23 May 2007. She changed her mind and said that she had heard the claimant refer to Mr Mitchell as ET. She denied that the claimant had used the word "Bastard" or "any other bad language". In her statement of 2 June 2007, she recalled that the claimant had said something to the effect of "Is ET gone home" or "has ET gone" and Miss Wilson replied, "Aye". As far as Mrs Wade was aware this is all that was said or done. It is clear that Mrs Wade heard the claimant refer to Mr Mitchell as ET.
- We note that the claimant in his IT1, with regard to the allegations made against him by Miss Wilson, states that Miss Wilson's, "allegations were incorrect and misinterpreted", not that they were malicious. Nothing was raised during Miss Wilson's cross-examination about an improper motive in making the allegations against the claimant.
- We are satisfied, having heard Miss Wilson's evidence under oath, that she gave us a truthful and accurate account of the events that occurred on 23 May 2007. Her motivation in reporting the claimant was that she considered the claimant's conduct totally unacceptable and she reported the matter only after careful consideration and seeking counsel from others. We consider that there was no substance in the accusation made in the letter of 7 June 2007, namely, that Miss Wilson made the allegations because of what the claimant allegedly told others about her work pattern. We consider that the allegations were likely to have been a cynical attempt to create a doubt.
- On 8 July 2007, Mr Anderson wrote to the claimant inviting him to a disciplinary hearing on 14 July 2007. The claimant was unable to attend. Mr Anderson again wrote to the claimant on 16 July 2007 informing him that the disciplinary hearing had been deferred until
21 July 2007. The claimant did not attend this meeting.
- The respondents did not set out in writing, in either of the letters of 8 and 16 July 2007, the alleged conduct which led it to contemplate dismissing the claimant: there was no statement of the conduct which led the respondent to contemplate dismissal (see Paragraph 1 (1) and (2) of the Procedures referred to later).. We are, however, satisfied that the claimant was fully aware of the allegations made against him by Miss Wilson. In his letter of 5 June 2007, he was able to comment upon them and on 8 July 2007 he received the statements of
Miss Wilson, Mrs Wade and Mr Steele.
- The Standard Dismissal and Disciplinary Procedures contained in Schedule 1 (Chapter 1) to the Employment (Northern Ireland) Order 2003 (the Order) applied in this case. We shall refer to these as "the Procedures".
Paragraph 1 of the Procedures states as follows:
(1) "The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which led him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter."
Paragraph 2 provides:
(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 (1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to the information."
- Having considered the extract from Harvey on Industrial Relations and Employment Law (Vol,1, D1 2793.01) set out below, we find that the procedures set out above have been satisfied in the circumstances of this case: -
"In YMCA Training v Stewart [2006] UKEAT/0332/06 the employee was sent a letter setting out the alleged misconduct and invited to an investigatory meeting at which she was given the opportunity to respond. No further letter was sent prior to the subsequent disciplinary hearing at which her dismissal was announced without her being given any further opportunity to make representations. A majority of the EAT held that this satisfied the requirements of steps 1 and 2. The EAT noted that it is crucial in cases of this kind for tribunals not to be distracted by the fact that the parties may have been following an internal procedure with more elaborate requirements and different terminology from those required by the statute: it is necessary to look beneath the parties' own labels and focus on whether the substantive requirements of the statute were or were not in fact met. A similar approach was adopted in Patel v Leicester City Council [2006] UKEAT/0368/06 in which a meeting requested by the employee to address certain complaints was held, on the facts, to satisfy the requirements of a step 2 meeting. In Ingram v Bristol Street Parts [2006] UKEAT/0601 (Elias P presiding) the EAT held that the tribunal had been wrong to assume that the statutory requirements obliged the employers to provide in advance all the evidence on which they intended to rely at the stage 2 hearing."
- The Disciplinary Sub-Committee (comprising Mr Anderson,
Mrs Ackerley and Ms Roberts) met on 21 July 2007. The minutes of this meeting notes that at 10:15am Mr Anderson received a call from Mrs Wade in which she informed him that the claimant would not be attending the meeting. The Sub-Committee read statements from
Miss Wilson, Mr Steele and Mrs Wade and the claimant's letter. They also read statements from persons Miss Wilson had consulted (on whether or not to lodge a complaint) between the time of the incident and the making of the complaint. These were Mr Mitchell, Mr O' Neill, Mrs Ackerley, Miss Orbinson, Mr McCartney and Ms Joan Cooke
(Ms Cooke). We did not see the statements of Mr O' Neill,
Mr McCartney or Ms Cooke. There were also letters from Mrs Anne Button and Mr Steele and what were described as "replies from
Mr O' Neill" and also what is referred to as, "an independent statement from Beth Bailie a sanctuary volunteer". We did not see these documents. The Sub-Committee considered, inter alia, the likelihood of Miss Wilson making false accusations. Having considered the matter the decision was taken to dismiss the claimant, we consider that dismissal was a reasonable penalty in this case, for what was, in the circumstances, gross misconduct.
- Mr Anderson wrote to the claimant on 23 July 2007 informing him that he had been dismissed and that he had the right of appeal to the full Executive Committee within 3 days of receipt of the letter.
- No oral evidence was presented to us indicating that the claimant appealed the decision of the Sub-Committee. The claimant in his IT1 states that he appealed by way of letter, dated 27 July 2007. He also states in the IT1 that he received a letter, dated 5 August 2007, from Mr Anderson advising him that the full Committee "had been presented with all statements pertaining to the allegations made against [him] and that they [the Committee] decided that the decision to dismiss him should be upheld." (This 'appeal' meeting is described below.) The claimant goes on to say, in his IT1, that he was not offered an opportunity to attend the appeal meeting.
- With regard to the 'appeal' meeting referred to above, this took the form of the papers being distributed to all 12 Executive Committee members for reading. The members then telephoned in their individual decisions to Mr Anderson. The 3 members of the Disciplinary Sub-Committee were not entitled to a vote, nor was Mr O' Neill. The constitution of the Association did not permit him a vote. We do not know whether Mr Mitchell (who was the butt of the claimant's alleged behaviour) voted. We asked this question of Mrs Ackerley and she told us that she could not remember.
- We are satisfied that the claimant did make an appeal. We are satisfied that he informed the respondent in writing of his wish to appeal. We are also satisfied that he was not invited to attend an appeal meeting. Paragraph 3 (2) of the Procedures provides:
"(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting."
- The respondents breached paragraph 3 (2) of the Procedures.
Automatic unfair dismissal
- Article 130 A (1) of the Order provides that where one of the Procedures applies, has not been completed and the non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, the employee shall be regarded as unfairly dismissed.
- The Procedures apply in this case. They were not completed and fault lies with the respondents. The claimant was, therefore, unfairly dismissed.
Enhancement of the basic and compensatory awards
- Article 17 (3) of the Employment (Northern Ireland) Order 2003 provides for enhancement of awards where the Procedures apply, they have not been completed and the non-completion is wholly or mainly attributable to the employer. In this case the procedures applied, and they were not completed. Their non-completion is wholly attributable to the Respondents. We consider that the appropriate up-lift in this case is 5%.
Basic award
- The basic award in this case amounts to £1,438.08. The calculation is as follows:
Claimant Born: 17 02 1973
Age at dismissal: 34 years.
Service: (28 September 1998 to 25 July 2007) 8 years.
Amount: 8 years @ £171.20 = £1,369.60 + enhancement of 5% = £1,438.08.
- With regard to the basic award, Article 156 (2) of the Order, insofar as relevant, provides;
"(2) Where the tribunal considers that any conduct of the complainant [claimant] before dismissal…..was such that it would be just and equitable to reduce…the amount of the basic award to any extent, the tribunal shall reduce that amount accordingly."
- We consider that the claimant's conduct was such that the basic award is reduced by 100%.
Compensatory award
- We were not presented with any evidence of loss.
- The award under this head would be £210, made up of £200 in respect of loss of statutory rights, enhanced by 5%.
- We find that, on the balance of probabilities, had the Procedures been followed the result would have been dismissal. We, therefore, make a 'Polkey reduction' of 100%.
Chairman:
Date and place of hearing: 6, 7 and 8 May 2008, Belfast.
Date decision recorder in register and issued to the parties:
