Mallon v NIE Powerteam Ltd [2009] NIIT 1516

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 1516/07

1945/07

DECISION

(2) that the respondent was not in breach of contract when it dismissed the claimant summarily.

The claimant’s claims of unfair dismissal and breach of contract are therefore dismissed in their entirety.

Appearances:

The claimant was represented by Mr Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

1. The claims were a claim of unfair dismissal and a claim of breach of contract, namely failure to pay notice monies.

(b) whether the statutory dismissal procedure set out in the Employment (Northern Ireland) Order 2003 was completed in this case; and, if so, whether the dismissal was, in all the circumstances, fair or unfair in accordance with Article 130(4) of the Order; and

(c) whether the respondent breached the claimant’s contract of employment when it dismissed him summarily and without notice or payment in lieu of notice.

3. The tribunal heard oral evidence from the claimant and Cathal Rafferty, on behalf of the claimant, and from Christopher Surgeoner, Jonathan Walsh, Con Feeney, Roger Henderson and Paula Leathem, on behalf of the respondent. In the course of the hearing, the parties also referred the tribunal to a number of documents in the tribunal bundle.

4. Counsel for the claimant conceded that the claimant had made a serious mistake and that this amounted to gross misconduct. However, counsel contended that the dismissal of the claimant was nevertheless unfair because the sanction of dismissal was unduly harsh since it fell outside the band of reasonable responses. In this regard, counsel for the claimant relied on other cases in support of his argument that the respondent had acted inconsistently. Counsel argued that this should lead to a finding that the dismissal was unfair in all the circumstances. Counsel for the claimant also argued that the respondent had breached legal requirements, both procedurally and substantively, as it had failed properly to consider the dismissal of the claimant in the light of all relevant factors, in particular mitigating factors. However, counsel for the claimant also conceded that it was likely the tribunal would find there was a significant degree of contributory fault in this case.

5. Counsel for the respondent contended that the claimant was guilty of gross misconduct, the procedure followed by the respondent was fair and dismissal fell within the range of reasonable responses. Further, counsel for the respondent argued that there were significant differences between the claimant’s case and the circumstances of the cases referred to by counsel for the claimant in support of his contentions in relation to alleged inconsistency. He contended that the conduct of the claimant was clearly different and more serious than that in the comparator’s cases and the argument in relation to alleged inconsistency was therefore bound to fail. Counsel for the respondent therefore argued that the dismissal of the claimant was fair in all the circumstances.

6. After the conclusion of the hearing, the judgment of the Northern Ireland Court of Appeal in the case of Gerard Dobbin v Citybus Limited 2008 NICA 42 came to the attention of the tribunal. Since the parties had not addressed the tribunal specifically in relation to this judgment, the tribunal invited the representatives of both parties to make written submissions on this point before the tribunal reached its conclusions in this case. Both parties made such written submissions in response to the tribunal’s invitation.

7. The respondent’s representative asked the tribunal to adopt the reasoning of the Court of Appeal in the Dobbin case. The respondent’s representative argued in the light of the Dobbin judgment that the only issues for the tribunal to decide were whether the procedures adopted by the respondent and its decision to dismiss the claimant were within the range of reasonable responses of a reasonable employer. The respondent submitted that both were and invited the tribunal on that basis to find that the claimant was not unfairly dismissed.

8. The claimant's representative indicated in their further submissions that the claimant in the Dobbin case is seeking to pursue a further appeal to the House of Lords and furnished a copy of the claimant’s Petition to the House of Lords which sets out various points in relation to the Court of Appeal judgment in the Dobbin case. The claimant's representatives also stated their view that the Dobbin case is not relevant to this case, although that view was not further clarified and these further submissions did not distinguish the factual position in this case from that in the Dobbin case.

9. Having considered the claim form and response, and having heard the oral evidence of all the witnesses and considered the documents referred to in evidence, and the submissions made by Counsel for both parties, the tribunal found the following relevant facts:-

(1) The claimant who was born on 13 September 1963 was employed by the respondent from December 1990. From around 1997, the claimant was employed as a Linesman and he held authorisation allowing him to work on live voltage power lines.

(2) The claimant’s work regularly involved him in making connections between large mains cables known as Area Bundled Conductors (ABC) which serve a number of properties and service cables which supply individual properties. ABC cables are made up of three live cores (known as phase) and one neutral core. One live core and one neutral core must be connected to the service cable to each house in order to deliver electricity at the required 230 volts.

(3) In or around October 2006, the respondent issued a Bulletin known as LC 08 – 06. This was headed ‘Polarity Tests on Distribution Networks’ and was treated as ‘Safety Critical Information’. Team Managers were required to brief Linesmen on the contents of the Bulletin. The main purpose of this Bulletin was to ensure that staff working on live cables followed all relevant safety procedures so that cables were connected correctly and the correct voltage delivered to a customer’s home. The Bulletin was intended to provide further guidance to staff working on the ground and to further reduce the small number of incidents of incorrect connections. This Bulletin applied to all types of cables.

“1 Identification and labelling of Phase, Neutral and Earth conductors prior to work –

This Bulletin required staff working on connections to use two different testing devices at different stages of the procedure. Firstly, the voltstick (polarity) tester which was to be used at various stages of the procedure and, secondly, the Martindale (blue plug) tester which was to be used to prove the polarity of the service into a customer’s property after a connection had been made.

(5) On 27 October 2006, the claimant signed a “Receipt of Safety Critical Information” to confirm that he had received a copy of this Bulletin and also confirmed that he had been given an opportunity to obtain clarification on the content if required.

(6) On 23 January 2007, the claimant attended an informal meeting with Mr Con Feeney, Customer Operations Manager of the respondent. The purpose of this meeting was to discuss recent storm situations when the respondent had required Linesmen to make themselves ‘generally available’ to respond to the emergency situation. Mr Feeney met with the claimant and other Linesmen from his team to discuss why their attendance for work during the emergency situation had fallen short of the respondent’s expectations. The claimant explained that he had had a busy week on standby around that time and stated that, in the future, if he had a busy week on standby, he would not be attending for work ‘even if the place was falling down’. Mr Feeney responded with words to the effect of ‘you and me have a problem’.

(7) Following an incident involving an incorrect connection known as a ‘reverse polarity’ incident in December 2006, the respondent decided to issue a further Bulletin to reinforce safety procedures in relation to ABC cables in particular. This further Bulletin was known as Bulletin 07/02 and was headed ‘Safety Bulletin – Subject: Correct Identification of Cores in ABC Conductor’. This Bulletin was issued on 1February 2007 and was again to be circulated to staff by being briefed by Team Managers.

The purpose of the requirement to tape the cores was twofold. Firstly, once identification tape was in place, this showed clearly which cores should be connected. Secondly, the act of applying tape encouraged careful identification of the relevant cores.

(9) On Friday 9 March 2007, the claimant attended a meeting conducted by Con Feeney, Customer Operations Manager for the respondent. A number of matters were discussed in the course of this meeting, but the meeting included a briefing to the claimant and the other Linesmen from his team in relation to Bulletin 07/02 and a re-briefing in relation to Bulletin 06 - 08. During this briefing, Mr Feeney indicated that failure to comply with the content of these Bulletins would be treated seriously. Mr Feeney also indicated that there was potentially a problem with the Martindale (Blue plug) tester since it was believed to have given an ‘okay’ reading on at least one occasion when two phases (400 volts) had been delivered into a customer’s property. However, he did not instruct the Linesmen not to use the Martindale tester. Other teams of linesmen based at other depots did not receive any such briefing in relation to these Bulletins.

(10) The claimant signed a ‘receipt of Safety Critical Information’ form on 9March 2007 confirming that he had received this Bulletin and had been given an opportunity to obtain clarification on the content.

(11) On Monday 12 March 2007, the claimant and other members of his team carried out work at a property in Newry. Before leaving the property, one of the team members checked the polarity of the service using a Martindale (Blue plug) tester which showed ‘okay’ and the team therefore left the property believing that all was in order. However, it transpired that an incorrect connection had been made so that two live wires (two phases) were connected to the service cable into the property rather than one live and one neutral. This meant that power at 400 volts was delivered into the property and led to damage to the customers’ appliances amounting to approximately £3,600.

(12) Shortly after this incident, Con Feeney asked Jonathan Walsh, Works Manager for Overhead Lines, to carry out an informal investigation. Mr Walsh had experience of the type of work carried out by Linesmen. On 20 March 2007, Mr Walsh together with Gerry Martin interviewed various individuals involved in carrying out the work at this property on 12 March, including the claimant. In the course of the interview with the claimant, he admitted that he had made the incorrect connection between the ABC cable and the service cable into the property. The claimant stated that he had first identified the neutral cable, then had made the connection and finally tested the connection with a voltstick tester which gave the reading he had expected. Before leaving the property, the claimant said he had intended to check the service into the house with a Martindale (Blue plug) tester, but his colleague, Billy McSherry, told him he had already done this and the test was okay.

(13) Following the informal investigation, it was decided that a formal investigation should be commenced and a formal investigation interview was held with the claimant on 6 April 2007. This formal interview was again conducted by Jonathan Walsh. Paula Leathem HR Adviser and the claimant’s trade union representative Brian Weir were also present.

(14) In the course of the formal investigation interview, the claimant admitted that he had not placed identification tape on the live and neutral cables once identified. He accepted that he should have taped and admitted he had made a mistake for which he apologised. The claimant also stated that he had been on standby the weekend prior to the incident, that he had recently separated from his wife, had moved house twice in a short time and that his mother had been ill. The claimant’s representative, Mr Weir, indicated that he felt there was an issue with the voltstick tester and that, on one occasion, he had to use three to get a result.

(16) At the conclusion of the formal investigation, a letter dated 24 April 2007 was sent to the claimant inviting him to attend a disciplinary interview on 9 May 2007. This letter stated that disciplinary action was being considered against the claimant in respect of the following allegation:-

“It is alleged that during work at[address] Newry on the 12^th March 2007 you failed to follow procedure as per Distribution Bulletin LC 08 – 06 Polarity Tests on Distribution Networks and Safety Bulletin 07/02 Correct Identification of Cores in ABC conductor in that you did not identify and label the phase, neutral and earth conductors prior to work. You had signed for these bulletins on Friday the 9^th March.”

(17) In the event, the disciplinary interview proceeded on 2 May 2007. The disciplinary hearing was conducted by Con Feeney. Jonathan Walsh who had conducted the investigation was also present as was Paula Leathem, HR Adviser, and the claimant was once again represented by Brian Weir. At the beginning of the hearing, there was a discussion as to whether the claimant accepted the allegation. Whilst the claimant accepted that he did not apply identification tape to the cables, he maintained that he had carried out tests. After some time, Mr Feeney adjourned the hearing to allow the allegation to be clarified.

(1) You failed to follow procedures as per Distribution Bulletin LC 08 – 06 Polarity Tests on Distribution Networks. This bulletin requires that when existing underground or overhead mains or services are being disconnected there must be no doubt as to how the conductors are to be reconnected.

During the course of your work, in the case of the Area Bundled Conductor (ABC) mains cable, you did not apply phase and neutral identification tapes to the cable cores as you should have under Bulletin LC 08/06.

(2) You also failed to follow procedure as per Safety Bulletin 07/02 – ‘Correct Identification of Cores in ABC conductor’ where you did not identify and label the phase and neutral conductors on the ABC when making connections to this conductor

You received these bulletins on Friday 9 March 2007. You signed for receipt of the bulletins, which note clearly that you have the opportunity to seek further clarification on any of the content of the document. Your Team Manager also reaffirmed this at the briefing session. It is your responsibility when receiving a bulletin to read it and ensure that you understand its contents.

During the course of your work on the 12 March 2007, you failed to follow the above procedures, which resulted in a reverse polarity incident at the above property.”

(19) The disciplinary hearing resumed on 9 May 2007 with the same parties present as on 2 May. The claimant confirmed that he accepted the allegation. Mr Feeney had prepared four additional questions which he put to the claimant. The first of these questions was why he had not followed procedure. In the course of answering this question, the claimant said “If I had of thought I would have taped. For so long I have not done this”. Mr Feeney then asked if the claimant had attended previous briefings in relation to this information and the claimant accepted that he had. Mr Feeney then stated “So from the previous briefing you are aware tapes had to be applied and did not tape” and the claimant answered “Yes”.

(20) The claimant also stated that he had relied on the voltstick test which had given the reading he would have expected had the connection been correct. The claimant’s representative, Mr Weir, stated that previous tests had not worked for him. By way of explanation as to why he did not follow the complete procedure, the claimant referred again to personal problems. He also reiterated his apology and said it would not happen again. The claimant stated “connections since using the tape, I’m crazy with the tape now”. The claimant also referred to his 17 years service, his clean disciplinary record and indicated that he was rarely off sick. He invited Mr Feeney to speak to a Team Manager and other engineers and referred to his mother’s illness.

(21) Like Mr Walsh, Mr Feeney claimed in the course of his evidence that he did make further enquiries about the reliability of the voltstick tester. Mr Feeney said that he may have made these enquiries during a brief adjournment of the hearing, but his evidence as to when these enquiries were made was generally very vague. He also accepted that any such enquiries were not documented nor were the results of such enquiries outlined to the claimant or his representative. The tribunal found these omissions surprising if these enquiries were made and were regarded as significant, particularly since Mrs Leathem, an experienced HR Adviser was advising Mr Feeney throughout the disciplinary process. At other times during his evidence, Mr Feeney indicated that he did not consider the voltstick tester or its reliability to be relevant to the issues in the case. On balance, the tribunal is not convinced that Mr Feeney made any further enquiries about the reliability of the voltstick tester.

(22) Having adjourned for a time, the disciplinary hearing was reconvened and Mr Feeney announced his decision in the following terms:-

“I have carefully considered all the facts and responses with respect to this incident and I would summarise as follows -

You admitted to being briefed on this procedure prior to the 9^th March and subsequently did not use tapes

You did not follow procedure one working day after being re-briefed on the seriousness and requirements of following this procedure

You are an experienced Linesman working on this type of work on a regular basis

I have difficulty in bringing myself to believe that you will follow this procedure or other procedures going forward

Your safety, the safety of your colleagues and the safety of the general public is paramount in all aspects of your work and in coming to this decision

Therefore the decision is dismissal on the grounds of gross misconduct – gross violation of the safety rules.”

(23) In an e-mail dated 11 May 2007, Mr Steve Tweed, a Regional Officer of AMICUS, confirmed that the decision to dismiss the claimant was being appealed. The notes of the disciplinary interview were furnished to Mr Tweed by Paula Leathem, HR Adviser, via an e-mail dated 23 May 2007.

(24) The claimant’s grounds of appeal were set out in a letter from Mr Tweed to Paula Leathem dated 5 June 2007. The grounds of appeal can be summarised as follows:-

(i) that Mr Feeney had not given due regard to difficulties with the voltstick tester;

(ii) that the claimant’s excellent record and the fact that he had accepted his mistake had not been taken into account nor had the fact that he had modified his work practice as a result of lessons learned;

(iii) that it was unreasonable for Mr Feeney to say he had difficulty believing the claimant would follow safety procedures going forward when the claimant had, in fact, modified his work practices. Further, it was noted that the claimant had continued to work after the incident and had not been suspended; and

(iv) that this case was inconsistent with other recent cases where employees involved in reverse polarity situations had not been dismissed.

(25) The claimant’s appeal was heard on 14 June 2207 by Mr Roger Henderson, Manager of Power Networks. In accordance with the respondent’s Disciplinary Procedure, Con Feeney who had conducted the first disciplinary interview and took the initial decision to dismiss the claimant, was present throughout the appeal hearing. Jonathan Walsh who conducted the investigation was also present along with Paula Leathem, HR Adviser. The claimant was represented by Steve Tweed and Brian Weir who had represented him at the first disciplinary interview.

(26) At the outset of the appeal hearing, it was confirmed that the claimant accepted the allegation as set out in the letter dated 4 May 2007. Mr Tweed ran through the main points of appeal as set out in his letter dated 5 June 2007. In relation to point (a), Mr Tweed argued that the voltstick tester was unreliable. The claimant gave names of other employees who have had issues with the voltstick. The claimant claimed in the course of evidence that he had also read out the telephone numbers of these individuals. On balance, the tribunal doubts whether telephone numbers were given by the claimant and notes that there is no reference to such details in the notes taken by either Mrs Leathem or the claimant’s representative, Mr Tweed, during the hearing. In response to the claimant’s argument that the voltstick was unreliable, Mr Feeney contended that any issues in relation to the voltstick were of durability rather than reliability.

(27) In relation to point (b), Mr Tweed referred to the claimant’s length of service (17 years), his excellent sick record and no previous disciplinary action. He also referred to the claimant having changed his work procedures. He suggested that only Mr Feeney could clarify whether these factors had been taken into account in the decision to dismiss the claimant. In responding, this point was not directly addressed by Mr Feeney. Rather he referred to the notes of the previous disciplinary interview which contained the statement on the part of the claimant “For so long I have not done this “. Mr Feeney stated “you also attended the previous brief on the 27/10/206 and signed for receipt of the bulletin. SM did not apply from then that is five months previous to now - he had not followed procedure”.

(28) In relation to point (c), Mr Tweed noted that the claimant could have been suspended due to safety concerns but had not been. Mr Feeney responded that this was due to the need to thoroughly investigate.

(29) In relation to his argument of alleged inconsistency point (d), Mr Tweed referred to the cases of JW, McM and McC and GL. The tribunal found the following relevant facts in relation to these cases:-

JW case – this related to a reverse polarity incident in August 2006. A disciplinary hearing took place in December 2006 where the allegation related to failure to comply with procedure in relation to identification and marking of conductors and failure to comply with a Policy Document relating to polarity testing resulting in a reverse polarity causing substantial damage to the customer’s property. The outcome of this case was a final written warning to be held on Mr JW’s file for 12 months. Mr JW also agreed to contribute towards the financial cost of the damage caused by this incident.

McM & McC case – this related to an incident in December 2006. Mr McC made a wrong connection whilst under the supervision of Mr McM. The allegation against Mr McM was that he had failed to provide adequate personal supervision to Mr McC. This inadequate supervision led to failure to comply with polarity testing procedures which resulted in an incorrect connection to a property with serious safety implications. The incident caused substantial damage at the property amounting to £3,000. Mr McM was issued with a final written warning which was to be held on his personal file for 12 months. Mr McC was found guilty of causing this incident and he was issued with a final written warning which was to be held on his personal file for 12 months.

GL case – this related to a reverse polarity connection in May 2006. The allegation was that the connection was made by an apprentice operating under the personal supervision of Mr GL. The incident resulted in damage to a customer’s goods and Mr GL failed to check and test the connections made by the apprentice. The outcome was that Mr GL was issued with a Written Warning which was to be held on his personal file for 12 months.

(30) In connection with his argument of inconsistency of treatment by the respondent, Mr Tweed suggested that there had been a change of policy without sufficient notification to employees. Mr Feeney argued that he had made it clear to the Linesmen at the briefing on 9 March 2007 that failure to follow the procedure was gross misconduct and dismissible. Having heard the evidence of all the witnesses on this point, the tribunal on balance considers that the warning given by Mr Feeney was not as specific as he suggested. Rather, the tribunal believes that the warning was in terms that failure to follow the procedure ‘would be treated seriously’.

(31) The outcome of the appeal hearing was confirmed by an e-mail dated 27 June 2007 from Paula Leathem to Steve Tweed enclosing a letter, notes of the hearing and a report setting out Mr Henderson’s findings and conclusions. Mr Henderson upheld the original decision to dismiss the claimant. In his report which set out his reasoning, Mr Henderson’s conclusions can be summarised as follows:-

(1) He considered the issue in relation to the voltstick to be irrelevant to the allegation.

(2) He considered that Mr Feeney had taken account of all the facts and responses in reaching his decision. Whilst he accepted that the claimant was honest in admitting his mistake, he considered that the incident was in his opinion more indicative of a failure to follow safety procedure rather than a mistake.

(3) Con Feeney was of the view that he would have difficulty in bringing himself to believe that the claimant would follow any procedure going forward and Mr Henderson considered this view to be justified.

(4) In relation to Mr Tweed’s argument that the claimant had been treated inconsistently, Mr Henderson considered that what differentiated the claimant’s case was that both procedures, that is Bulletin 06 – 08 and 07/02 were clearly briefed to the claimant only three days prior to the incident.

As far as personal mitigating circumstances were concerned, Mr Henderson was satisfied that Mr Feeney had taken this into consideration before coming to his final decision.

(32) At the hearing before the tribunal, the claimant stated that, shortly after the appeal hearing, he had written out a note addressed to Mr Henderson and arranged for a friend to send this in an e-mail to Mr Henderson. On the claimant’s evidence, the claimant argued in this note that he had, in fact, carried out taping on many occasions during the early part of 2007. The tribunal is satisfied on the basis of the evidence that such an e-mail was never received by Mr Henderson.

(33) The claimant’s earnings during his employment with the respondent were £423.83 per week (net). Following his dismissal, on 9 May 2007, the claimant received Incapacity Benefit from 13 May 2007 to 16 July 2007. He received a total of £578.44 in Incapacity Benefit. On 17 July, the claimant obtained alternative employment with Bann Network Services. In his new employment, the claimant’s earnings were (on average) £549.23 per week (net). During his employment with the respondent, the claimant was a member of the respondent’s final salary pension scheme. In the claimant’s new employment, he did not have access to any pension scheme.

(34) By letter dated 9 August 2007 from Steve Tweed, the claimant’s trade union representative, to Mr Parkes of the respondent, the claimant raised a written grievance in relation to the respondent’s failure to pay notice monies when the claimant’s employment was terminated. By agreement, this grievance was dealt with by way of the modified statutory grievance procedure. The respondent responded to this grievance by letter dated 4 September 2007 in which it contended that the claimant was dismissed for gross misconduct, namely violation of company safety rules. The respondent further contended that no notice period or pay in lieu of notice was required in such circumstances.

(35) After the conclusion of the disciplinary procedure involving the claimant, there was another reverse polarity incident in February 2008 involving Mr PE. The allegation against Mr PE was that he failed to follow polarity testing procedures including LC 08 – 06 which had been briefed to him on 27 October 2006. This failure to follow procedure resulted in a reverse polarity causing a member of the public to receive a shock. Initially, Mr PE was dismissed following a disciplinary hearing, but on appeal, the penalty was reduced to a final written warning with a period of one month’s suspension without pay from the date of the disciplinary meeting and with the event to remain on Mr PE’s record for a period of three years. In this case, evidence was presented that Mr PE was under very severe personal strain on the day of the incident as his wife was due to receive the results of significant medical tests that day. In addition, the particular work activity was not undertaken regularly by Mr PE.

10. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order 2003 (‘the 2003 Order’) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Written statement of grounds for action and invitation to meeting – the employer must set out in writing the employee’s alleged conduct which leads the employer to contemplate dismissing him or taking disciplinary action against the employee.

The meeting must take place before action is taken. The meeting must not take place unless:-

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

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

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.

If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision.

Where the employer is responsible for non-completion of the statutory dismissal procedure, the dismissal is automatically unfair (Article 130A (1) of the Order).

11. By Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within Paragraph (2). A reason falls within Paragraph (2) if it relates to the conduct of the employee.

“Where the employer has fulfilled the requirements of para (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.”

13. The leading case in relation to dismissals for misconduct is BHS v Burchell [1978] IRLR 379 (EAT). In the Burchell case, the EAT set out the following principles:-

“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, 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… 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 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.”

14. In the case of Iceland Frozen Foods v Jones [1983] ICR 17, Browne-Wilkinson J offered the following guidance to tribunals when considering the fairness of a dismissal:-

“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 section 57(3) of the [Employment Protection (Consolidation) Act 1978] (the equivalent of Article 130(4) of the Order) is as follows:-

(1) the starting point should always be the words of section 57(3) 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, 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.”

15. After some uncertainty as to the ‘band of reasonable responses test’, this was clearly reaffirmed by the Court of Appeal of England and Wales in the case of Foley v Post Office and HSBC(formerly Midland Bank) v Madden [2000] ICR 1283. The Foley case was recently considered by the Northern Ireland Court of Appeal in the case of Gerard Dobbin v Citybus Limited [2008] NICA 42. In his judgment in the Dobbin case, Higgins LJ paraphrased the judgment of Mummery LJ in the Foley case saying that the questions a tribunal was obliged to ask in a complaint of unfair dismissal are as follows:-

“The first question is – Why did the employer dismiss the employee? (in other words did the reason for his dismissal relate to his conduct within the meaning of Article 130 and was that reason based on a set of facts known to the employer or a set of beliefs held by the employer which caused him to dismiss the employee?). The second question is – Did the employer act reasonably or unreasonably in treating that reason as a sufficient reason to dismiss the employee? In this regard the tribunal has to consider whether the employer has established reasonable grounds for its belief that the employee was guilty of misconduct and whether it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

When satisfied as to the employer’s beliefs and investigation, the tribunal must ask itself whether objectively the dismissal was ‘within the range of reasonable responses for this employer to have dismissed the employee’. In some cases no range is necessary, for example, those in which the case for dismissal is obvious or those in which dismissal is clearly unreasonable. In the majority of cases there will be a range of reasonable responses and as Mummery LJ said at page 1292, “In those cases it is helpful for the tribunal to consider ‘the range of reasonable responses’. In the course of considering Foley’s case he emphasised that, in accordance with the guidance offered in Iceland Frozen Foods, the tribunal must not substitute itself for the employer and consider whether they personally think dismissal was fair and “substitute their decision as to what was the right course to adopt for that of the employer”.”

16. In the case of J Sainsbury Ltd v Hitt [2003] ICR 111, Mummery LJ further confirmed that:-

“The range of reasonable response approach applied to the conduct of investigations, in order to determine whether they are reasonable in all the circumstances, as much as it applies to other procedural and substantive aspects of the decisions to dismiss a person from employment for a conduct related reason.”

In his judgment in the Dobbin case, Higgins LJ expressed the point in the following terms:-

“In other words, it is not for the tribunal to determine whether the conduct of the investigation was reasonable but whether in the particular circumstances of the case the investigation was one which a reasonable employer would consider fell within the range of reasonable investigations to enable the particular allegations against the employee to be investigated and determined. Thus the nature and depth of any investigation will vary with the circumstances and conduct under consideration.”

17. In this case, counsel for the claimant placed reliance on alleged inconsistency of treatment by the respondent in relation to apparently similar acts of misconduct. In Harvey on Industrial Relations and Employment Law, the author notes that where an employer treats employees in a similar position differently, such inconsistency may render a dismissal unfair. This is demonstrated by the judgement of the English Court of Appeal in the case of Post Office v Fennell [1981] IRLR 221 where Brandon LJ commenting on the significance of the word ‘equity’ in (the equivalent of Article 130(4) of the Order, stated:-

“It seems to me that the expression equity as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”

18. However, Harvey goes on to indicate that four notes of caution need to be added to this proposition. Firstly, the allegedly similar situations must be truly similar – see the case of Hadjioannou v Coral Casinos [1981] IRLR 352. Secondly, an employer cannot be considered to have treated other employees differently if he was unaware of their conduct. Thirdly, if an employer consciously distinguishes between two cases, the dismissal can be successfully challenged only if there is no rational basis for the distinction made – see Securicor v Smith [1989] IRLR 356 (CA). Fourthly, even if there is clear inconsistency, Harvey notes that this is only a factor which may have to give way to flexibility. For example, if an employer has been unduly lenient in the past, he will be able to dismiss fairly in future notwithstanding the earlier inconsistent treatment.

19. In his submissions, Counsel for the claimant referred the tribunal to the case of Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 which he submitted represented authority for the proposition that the employer must consider relevant mitigating factors put forward by an employee before reaching its decision. He also submitted that the employer must carry out any necessary investigation into mitigating circumstances before reaching its decision – see Chamberlain Vinyl Products Ltd v Patel [1986] ICR 113. In this regard, counsel also referred the tribunal to Paragraph 18 of the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures which the tribunal is required to take account of. Paragraph 18 states that:-

“Before making any decision the employer should take account of the employee’s disciplinary and general record, length of service, actions taken in any previous similar case within the organisation, the explanations given by the employee – and most important of all – whether the severity of any intended disciplinary action is reasonable in all the circumstances. … employers should take account of, in particular, the extent to which standards have been breached. Employers should also consider any special circumstances which might make it appropriate to adjust the severity of any intended action.”

20. The tribunal began by considering whether the statutory dismissal procedure had been complied with in this case. The tribunal was satisfied that the respondent’s letter dated 24 April 2007 together with the subsequent letter dated 4 May 2007 which set out amended disciplinary charges were sufficient to meet the requirements of Step 1 of the statutory procedure described at Para 14 above. In this regard, the tribunal is mindful that Mr Feeney had given a warning just three days before the relevant events that failure to comply with the respondent’s safety procedures would be treated very seriously. The tribunal considers that this warning should be regarded as part of the relevant background and context of the respondent’s Step 1 letter. However, whilst the tribunal was satisfied that the basic statutory requirements were complied with and the claimant did not specifically take issue with the content of these letters, the tribunal noted that neither letter stated explicitly that the disciplinary charges could potentially constitute gross misconduct and/or that dismissal was a potential sanction in this case which the tribunal would suggest would be regarded as best practice.

21. In relation to Step 2 of the statutory dismissal procedure (see paragraph 10) above, the tribunal considered that the disciplinary hearing which commenced on 2 May and reconvened on 9 May 2007 met the relevant statutory requirements. The claimant was aware before the disciplinary hearing of the basis of the case against him and had a reasonable opportunity to consider his response to that case. At the conclusion of the disciplinary hearing, the claimant was notified orally of Mr Feeney’s decision and informed of the right of appeal against that decision. The tribunal was surprised to note that the Mr Feeney’s decision was not confirmed to the claimant in writing. Whilst the tribunal has no doubt that written confirmation of the disciplinary decision would be good practice, failure to take this step does not put the respondent in breach of the statutory dismissal procedure.

22. Finally, the tribunal was satisfied that the respondent complied with Step 3 of the statutory dismissal procedure in this case as the claimant was invited to an appeal hearing on 14 June 2007 and the respondent’s final decision was confirmed to the claimant following that hearing by an e-mail to his representative dated 27 June 2007 together with notes of the hearing and a report setting out the findings and conclusions from the appeal hearing.

23. Having concluded that the statutory dismissal procedure was completed in this case, the tribunal then considered whether, in accordance with Article 130(1) of the Order, the respondent had shown the reason for the dismissal and that such reason was a reason falling within Article 130(2) of the Order. In this case, it was suggested by the claimant’s counsel that the dismissing manager, Mr Feeney, was influenced by the fact that he and the claimant had a disagreement and exchanged words at a meeting on 23 January 2007. In relation to this point, the tribunal concluded that Mr Feeney and the claimant did have a disagreement on that occasion and that Mr Feeney used words to the effect of “you and me have a problem”. However, the tribunal did not believe that this was the real reason why Mr Feeney dismissed the claimant or why this decision was upheld by Mr Henderson on appeal. Rather, on the basis of the evidence it heard, the tribunal was satisfied that the respondent had shown the reason for the dismissal of the claimant. The tribunal was also satisfied that this reason was the conduct of the claimant which is a reason falling within Article 130(2) of the Order, that is a potentially fair reason for dismissal.

24. It was then necessary for the tribunal to consider, in accordance with Article 130(4) of the Order, whether the dismissal of the claimant was fair or unfair. The tribunal reminded itself that this depends on whether in all the circumstances, including the size and administrative resources of the employer, the employer acted reasonably or unreasonably in treating the reason shown by the employer as a sufficient reason for dismissing the employee. Further, that this is to be determined in accordance with equity and the substantial merits of the case.

25. The tribunal considered the principles set out in the case of BHS v Burchell (see Paragraph 17 above) and analysed each of these issues in turn. Firstly, the tribunal considered whether the respondent had established that it actually believed at the time of dismissal that the claimant had committed the relevant act of misconduct. In this case, having heard the evidence of Mr Feeney and Mr Henderson who were responsible for the decisions taken following the disciplinary and appeal hearings respectively, the tribunal was satisfied that both genuinely believed that the claimant was guilty of the misconduct alleged against him in the correspondence from the respondent dated 4 May 2007.

26. Secondly, the tribunal considered whether the respondent through the relevant managers had reasonable grounds on which to sustain that belief. This was a case where, at all stages of the disciplinary procedure and at the hearing before the tribunal, the claimant admitted that he had committed the act of misconduct set out in the formal disciplinary charges against him. Therefore, the tribunal had little hesitation in accepting that, in view of the claimant’s admission, the respondent had reasonable grounds on which to sustain its genuine belief in the claimant’s guilt in respect of the disciplinary charges against him.

27. Thirdly, the tribunal reviewed whether in this case the respondent had carried out as much investigation as was reasonable in the circumstances. In this case, it was clear that the respondent through Mr Walsh had initially carried out an informal investigation which involved interviews with a number of employees involved in carrying out the relevant works on 12 March 2007. In the course of this initial informal investigation, the claimant accepted that he was responsible for making the relevant connection. This was followed by a formal investigation under the respondent’s disciplinary procedure in the course of which the claimant was formally interviewed by Mr Walsh. In this case, the claimant had admitted his failure to tape the cores from the earliest stages of these investigations. In light of this clear admission, the tribunal had no difficulty in concluding that the respondent’s investigation into the disciplinary charges was reasonable in all the circumstances.

28. At the various stages of the disciplinary procedure and at the hearing before the tribunal, the claimant raised alleged difficulties with the reliability of the voltstick tester. Ultimately, the tribunal was not convinced by the evidence of the respondent’s witnesses each of whom claimed that they had carried out further investigations in relation to this point. The tribunal also found the respondent’s position in relation to this issue somewhat confusing and inconsistent. In particular, the respondent through its managers seemed to have adopted an inconsistent approach to whether the alleged unreliability of the voltstick tester was of any relevance to the misconduct alleged against the claimant. To some extent, the tribunal also struggled with this issue and whether or not this issue was relevant in the circumstances. Ultimately, the tribunal concluded that the only potential relevance of the alleged unreliability of the voltstick tester was that, had the voltstick tester (and indeed the Martindale tester) been consistently reliable and accurate, then this would have averted the consequences of the claimant’s error on 12March 2007. However, this was not of direct relevance to the misconduct alleged against the claimant which focused on the claimant’s failure to tape the cores in breach of safety procedures. Whilst the tribunal considers that the respondent’s handling of this issue during the disciplinary procedure was confused and inconsistent, on balance, the tribunal does not believe that this had any significant impact on the outcome of the disciplinary proceedings.

29. Having addressed the issues set out in the Burchell case, the tribunal then proceeded to consider whether the dismissal was fair or unfair in accordance with Article 130(4) of the Order and the approach to this question outlined in the Court of Appeal’s judgment in the Dobbin case. In his judgment, Higgins LJ essentially re-states the Burchell principles and said that once it was satisfied as to the employer’s beliefs and investigation, the tribunal must then ask itself objectively whether the dismissal was within the range of reasonable responses. In doing so, the tribunal must be careful not substitute its own views for those of the employer.

30. In considering this issue, the tribunal focused on the misconduct alleged against the claimant in the respondent’s letter dated 4 May 2007 which misconduct was admitted by him. In essence, that charge was that the claimant had failed to comply with safety critical instructions in relation to taping of cores which led to an incident on 12 March 2007. The tribunal was mindful that this is an area where safety is of the utmost importance and that the claimant and his colleagues had been warned at a safety briefing just a few days before that any breach of the relevant safety bulletin would be treated seriously. The tribunal also reminded itself that it must guard against substituting its own views for those of the employer. On balance, the tribunal reached the conclusion that dismissal for the misconduct in question did fall within the range of reasonable responses of a reasonable employer, albeit the tribunal considered this was not a case where dismissal was the only obvious response.

31. As set out above, the claimant in this case contended that the respondent had adopted an inconsistent approach to similar types of misconduct and that this should lead to a finding of unfair dismissal. The tribunal approached this issue in accordance with the principles set out in Harvey and outlined at Paragraphs 17 and 18 above. The tribunal noted that, in a number of previous cases outlined at Paragraph 9(29) above, the essence of the disciplinary charges related to failure to comply with safety bulletins/instructions which led to reverse polarity type incidents. On the face of it, it appeared to the tribunal that these cases had some similarities to that of the claimant.

32. However, in this case, the issue of alleged inconsistency of treatment was raised at the appeal stage and addressed by Mr Henderson in his conclusions in relation to the claimant’s appeal. In those conclusions, Mr Henderson stated that, in his view, the distinction in the case of the claimant was that he had received the relevant safety briefing just three days before the incident in question. The tribunal considered the case of Securicor v Smith in this regard. The tribunal concluded that, as with the Securicor case, this is a case where the issue of alleged inconsistency of treatment was explicitly considered by the respondent. In such a case, the dismissal can only be challenged if there was no rational basis for the distinction made by the employer. The tribunal considered the basis for the distinction put forward by Mr Henderson in this case, that is the failure of the claimant to comply with safety critical instructions only three days after they had been briefed to him. The tribunal was of the view that it could not be said there was no rational basis for drawing such a distinction. Accordingly, the claimant’s contentions in relation to alleged inconsistency of treatment cannot lead to a finding of unfair dismissal in this case.

33. Counsel for the claimant also contended that the respondent failed to take into account the mitigating circumstances put forward by the claimant and that the appeal process had failed to cure that defect since Mr Henderson had simply adopted Mr Feeney’s approach. It was clear from the notes of the disciplinary hearing that Mr Feeney asked the claimant about mitigating circumstances and had also invited the claimant to expand on the personal reasons he referred to. The tribunal was satisfied that the extent of investigation by the respondent during the disciplinary and appeal hearings into the mitigating circumstances referred to by the claimant was reasonable.

34. In his evidence to the tribunal, Mr Feeney stated clearly that, in reaching his decision, he did take into account the claimant’s length of service, his clean disciplinary record and his good sickness record. However, Mr Feeney’s evidence was less clear as to how he had approached certain other elements of the mitigating circumstances put forward by the claimant. Having heard the evidence, the tribunal does not accept the submission by counsel for the claimant that Mr Feeney failed to take account of other mitigating circumstances put forward by the claimant. Rather, the tribunal concluded that Mr Feeney had considered those mitigating factors, but did not consider them to be sufficient to mitigate against the seriousness of the admitted misconduct and the relevant safety context. The tribunal was satisfied that Mr Feeney’s approach to the issue of mitigation fell within the range of reasonable responses. In this regard, the tribunal was once again mindful of the need to ensure that it did not substitute its own view of the mitigating circumstances for that of the employer.

35. In relation to the claimant’s claim of breach of contract, namely failure to pay notice monies, the tribunal is satisfied that the claimant was dismissed by reason of gross misconduct and that summary dismissal, that is dismissal without notice, was justified in the circumstances.

36. In summary, this was a case where the tribunal considered that the procedure adopted by the respondent fell short of best practice in a number of respects. For example, see the comments at Paragraph 20 above in relation to the Step 1 letter, the failure to confirm the dismissal decision in writing (see the comments at Paragraph 21 above) and the extent of the role and involvement of the dismissing manager at the appeal hearing. However, ultimately this was a case where the claimant admitted certain conduct and it was conceded on behalf of the claimant that this conduct amounted to gross misconduct. For the reasons outlined above, the tribunal concluded that dismissal fell within the range of reasonable responses of a reasonable employer and that the dismissal of the claimant was therefore fair in all the circumstances.

37. Accordingly, the unanimous decision of the tribunal is that the claimant was not unfairly dismissed. Further, the unanimous decision of the tribunal is that the respondent was not in breach of contract in failing to pay notice monies to the claimant. The claimant’s claims of unfair dismissal and breach of contract, namely failure to pay notice monies are therefore dismissed in their entirety.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mallon v NIE Powerteam Ltd [2009] NIIT 1516_07IT (26 March 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1516_07IT.html Cite as: [2009] NIIT 1516_07IT, [2009] NIIT 1516_7IT

Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1516/07

1945/07

DECISION

Appearances: