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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilson v Robinson Ferry Construction Co... [2014] NIIT 1719_13IT (02 December 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/1719_13IT.html Cite as: [2014] NIIT 1719_13IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1719/13
CLAIMANT: Freddie Wilson
RESPONDENT: Robinson Ferry Construction Co Ltd (in administration)
DECISION
The unanimous decision of the tribunal is that:-
(i) the claimant was unfairly dismissed and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £31,290.00;
(ii) the tribunal makes a declaration that the respondent failed to provide to the claimant a statement of the particulars of changes to his statement of particulars of employment and makes an award of £900.00 to be paid by the respondent to the claimant; and
(iii) further, the respondent is ordered to pay to the claimant the sum of £4,640.28 made up of:-
(i) £ 403.44 (holiday pay); and
(ii) £4,236.84 (notice pay).
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Ms E Bailey
Mr J McKeown
Appearances:
The claimant was represented by Ms E Fox, Solicitor, of Barry Fox, Solicitors.
The respondent was represented by Mr R McCausland, Barrister-at-Law, instructed by McIlDowies, Solicitors.
Reasons
1.1 The claimant presented a claim to the tribunal on 25 September 2013, in which he made a claim for unfair dismissal, failure to pay notice pay and failure to pay holiday pay. During the course of the hearing, it was agreed by the representatives that the claimant had also made a claim, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003, (‘the 2003 Order’) for an award to the claimant for the failure of the respondent to give a statement of particulars of changes to his statement of employment particulars. The respondent presented a response to the tribunal on 7 November 2013, in which it denied liability for the said claims made by the claimant. Since the date of the hearing of this matter, the tribunal has been informed by the claimant’s representative the respondent has gone into administration on 30 July 2014 and the title of the respondent is amended accordingly.
1.2 During the course of the hearing, the claimant confirmed that, if the tribunal found his dismissal was unfair, he wished to obtain an award of compensation and he was not seeking an order of reinstatement and/or re-engagement from the tribunal.
1.3 It was not disputed the claimant, who was born on 24 April 1965, was employed by the respondent from in or about 1993 to 25 June 2013; and, at the date of the termination of his employment, was earning £456.60 (basic) gross per week and £353.07 (basic) net per week. In addition the claimant received £30.00 (gross) for call-out and £25.00 (gross) for standby. These varied but, on average, he might expect to earn one call-out and one standby per week giving him, on average, net earnings of £400.00 net per week.
2.1 The tribunal heard oral evidence from Mr S Robinson, on behalf of the respondent; and from the claimant and Mr Alan Bradley on behalf of the claimant. Mr Gregory Healey had provided a witness statement on behalf of the respondent and Ms Maureen Owens had provided a witness statement on behalf of the claimant. Both of these said statements had been exchanged between the parties in accordance with the tribunal’s previous case-management orders. Neither witness was present to give oral evidence to the tribunal. Following submissions by both representatives, it was agreed by the tribunal, on the application of the representatives of the parties that each of the said statements would be admitted by the tribunal as hearsay evidence, on behalf of the respective parties. But the tribunal, when doing so, warned both representatives that the weight, if any, which could be given to the evidence contained therein, would be little, in circumstances where neither witness was able to be the subject of cross-examination (see further Curley v Chief Constable of the Police Service of Northern Ireland [2008] NIFET 442). As stated by the Employment Appeal Tribunal in Papajak v Intellego Group Ltd and Others [UKEAT/0124/12], in a case where a claimant had declined or refused to give evidence but her witness statement was admitted as hearsay evidence:-
“Her evidence was hearsay, in the absence of her entering the witness box, and although the Employment Tribunal clearly had jurisdiction to accept hearsay evidence it is not nonetheless not able to ignore or totally disregard well-established principles of law with reference to the admissibility of evidence and the weight to be attached to hearsay evidence. The Employment Tribunal was accordingly entitled to have regard to the fact that the claimant’s evidence was hearsay and would attract much less weight than if she had gone into the witness box to give oral evidence.”
(See Snowball v Gardiner Merchant [1987] ICR 719.)
2.2 Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral and/or written submissions by the representatives of the claimant and respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s said claims.
2.3 The claimant initially joined the respondent as a joiner. He worked for a number of years on private construction work for the respondent but subsequently in or about 2007 a supervisory role in relation to maintenance contracts entered into between the respondent and the Northern Ireland Housing Executive (‘NIHE').
2.4 In or about 2012 the respondent entered into a measured term contract with NIHE, which was worth approximately one million pounds per annum to the respondent and was for a period of four years with the option of a further extension for two years. The contract provided for the employment of approximately 20 operatives. In the tender document to obtain the said contract, the claimant was described by the respondent as a Front Line Manager and his role and experience were described as follows:-
“Role :
Freddie, in consultation with the on duty emergency call officer will manager the general works order and in conjunction with our customer liaison officer will be the front face of our quality maintenance service. Client communication will be on a daily basis with district office staff.
Experience :
Full train craftsman, Freddie has been part of our team for 14 years having some nine years based in Strabane on our measured team contract. Within that period he has been continuously developed his interpersonal skills dealing with customers of all ages and disabilities.”
2.5 It was not disputed a measured term contract, in essence, was a series of individual contracts upon which NIHE would raise what are known as works orders in relation to damage to their property in the Strabane area were indeed new works to be carried out. These works orders arose on a daily basis and their number and frequency by their nature was unpredictable and could vary between 6 and 20 per day. Once the orders were received they were assigned to the relevant maintenance contract operatives. The continuance of the contract with NIHE was extremely important to the respondent because at the time of the events, the subject-matter of these proceedings, it comprised 99% of the respondent’s workload, it was the core nature of the business, as the respondent had no other similar contracts and it was essential for the long term financial viability of the respondent that the contract was maintained. The respondent therefore placed considerable trust on the claimant to properly carry out his supervisory role in relation to the said contract.
2.6 The claimant’s job title, although described differently in the tender documents, was ‘response maintenance supervisor’, responsible for managing approximately 10 operatives who carried out the maintenance request set out in the works orders received from NIHE as works order; and his role required, in particular, ensuring compliance with the contract and ensuring the work orders were carried out by the said operatives as and when received. As seen in the tender documents, this also required considerable liaison with local district NIHE office and staff.
2.7 The claimant signed the document with the respondent on 20 May 2002, setting out his main terms and conditions of employment. Much of the document was in blank, including, for example, dates of employment, remuneration; but, in essence, was intended to be the particulars of employment of the claimant as a joiner, which title was expressly stated in the signed statement.
2.8 It was suggested in evidence by Mr Robinson, the respondent’s Contract Director, that the claimant signed a further amended statement of main terms and conditions of employment in or about August 2012. No such document was ever produced in evidence and it was suggested by Mr Robinson it had been mislaid. The claimant denied he had signed any such document. Mr Robinson acknowledged, in any event, such a document would have been a standard document signed by all employees at the time and, in particular, would not have specifically addressed the change of duties and role of the claimant as a supervisor from the time he was a joiner. Further, Mr Robinson could not state what, if any, amendments were made to the document in August 2012 in comparison with the 2002 document.
The tribunal concluded, on the evidence, no such document was ever signed by the claimant in August 2012. In so concluding, it noted that, in a letter dated 10 June 2013 sent by the respondent, in the course of disciplinary proceedings, to which reference shall be made later, a copy of the respondent’s policy regarding disciplinary procedures was provided with a copy of the signed 2002 contract document but not the August 2012 document. Further, no reference was made in the letter to the August 2012 document or that it had amended the 2002 contract document enclosed. If the statement of terms and conditions had been amended/updated to reflect the claimant’s supervisory position, the tribunal was of the opinion, the subject-matter of these proceedings might have been avoided (see later). The statement of terms and conditions signed by the claimant in 2002 provided a maximum of 12 weeks’ notice, if employed for 12 years or more.
2.9 In addition to the claimant, the respondent had another supervisor, George Healey, who had responsibility for carrying our works on properties belonging to NIHE, which had been vacated by the tenants, so that they could be re-let to new tenants.
2.10 Mr Robinson did not dispute that, although the claimant did not have a job description for his said supervisory role, his responsibilities included, in particular:-
“(a) being on standby outside working hours;
(b) attending call-outs received from the Housing Executive in relation to immediate maintenance required;
(c) collecting work dockets from the Housing Executive;
(d) managing work for joiners under the claimant’s supervision;
(e) ordering materials; and
(f) submitting weekly timesheets to head office for weekly wages to be paid.”
It was further accepted by Mr Robinson that, in carrying out these duties the claimant would spend considerable time ‘on the road’ and would not always be based in the Strabane Depot of the respondent. The job of the claimant was extremely important for the success of the contract as it was recognised by all involved with the contract, including the claimant, that if there was a failure by the respondent to carry out the work orders issued by NIHE in a timely fashion or at all, could involve the respondent in financial penalties or would withhold payments under the contract and that any such breach could result in the termination of the contract by NIHE or a failure to extend it – which would have serious implications for the financial viability of the respondent.
2.11 Under the respondent’s disciplinary procedures, it was provided, inter alia:-
“General principles
No disciplinary action shall be taken until there has been a full investigation into any alleged incident. [tribunal’s emphasis]
At each stage of this procedure you shall have the right to a fair hearing with the opportunity to state your case and to be accompanied by a fellow [sic] if desired.
...
Gross misconduct
If you have committed an offence which is regarded as misconduct and management is satisfied after investigation and a disciplinary hearing that it has occurred you will be dismissed summarily, ie without notice and without wages in lieu of notice.”
The procedures set out a list of examples of type of conduct which might fall into the category of gross misconduct concluding – leaving the premises or site without permission, refusal to carry out work instruction, falsification of records, clocking offences.
2.12 It was not disputed that, prior to the events, the subject-matter of these proceedings, there was never any complaint by NIHE to the respondent about the claimant’s work or that there was any issue raised with the claimant about the performance of his duties.
2.13 On 5 June 2013, Mr Robinson sent a letter to the claimant which stated, inter alia:-
“Re: Allegation of gross misconduct
We refer and request that you attend a disciplinary hearing on Tuesday the 11th of June at 11 o’clock am in our Campsie Head Office to answer allegations of gross misconduct we believe have taken place.
You reserve the right to bring another person with you as we would advise that the potential outcome maybe dismissal from our firm.
In the interim period you will be suspended for all company duties/work. The company vehicle and vehicle phone should be left in our Ballycolman premises pending the outcome of the hearing.”
The claimant wrote to Mr Robinson by letter dated 7 June 2013, asking for a copy of his original contract as signed by him and the company’s disciplinary procedures. It is to be noted that in this letter the claimant made no reference to any amended contract signed in August 2012 (see before). In addition, the claimant asked for “any or all formal meetings that had been held or have taken place regarding misconduct, dates of same are now required, as well as recommendations by way of outcome from said meetings.”
In a reply, by letter dated 10 June 2013, referred to previously, a copy of the original signed contract in 2002 and the respondent’s disciplinary procedures were provided to the claimant by Mr Robinson. He also stated “please note that no formal meetings have taken place and that the first formal meeting is scheduled for Tuesday 11th of June at 11.00 am”.
2.14 The claimant attended the disciplinary meeting on 11 June 2013. During the course of this meeting, and not at the outset, the claimant was verbally informed by Mr Robinson that the alleged misconduct, the subject of the meeting, related to leaving work without permission notice, falsification of timesheets/records and unauthorised use of company vehicle. This was the first notification, albeit verbally of the nature of the alleged misconduct made against the claimant and of any details relating to same.
The letter of 5 June 2013 had been hand-delivered to the claimant by Mr Robinson. At that time there was a limited conversation between them; but the tribunal is satisfied that, although the letter had indicated there was to be the disciplinary meeting on 11 June 2013 about an allegation of gross misconduct by the claimant and that he was to be suspended in the meantime, it does not accept Mr Robinson verbally told the claimant, as he insisted to the tribunal that he had, during his cross-examination, that he gave the details of the said allegations referred to above to the claimant during the course of the above conversation. The tribunal has no doubt, that if he had done so, he would have set this out in his witness statement, which he failed to do. In this context, the tribunal notes that Mr Robinson admitted he was unaware of the statutory dismissal and disciplinary procedures. Indeed, in the course of written submissions, the respondent’s representative accepted there had not been ‘strict compliance with the requirements’ of the said procedures. The tribunal can understand why the claimant, knowing the meeting was about alleged gross misconduct asked, in his letter of 7 June 2013, for details about meetings of misconduct as he clearly was unaware of the details of the allegations that were to be the subject of the disciplinary meeting. The tribunal also found it difficult to understand why, if Mr Robinson had given the claimant details of the allegations of the misconduct in the conversation on 5 June 2013, Mr Robinson in his pre-prepared document for the disciplinary meeting had not set out the specific allegations on the document in advance of the meeting (see later).
2.15 At some date, in or about late April/early May 2013, Mr Robinson had visited the Strabane Depot of the respondent in the evening and noted that the claimant was not there. He accepted that there would be many times the claimant would not be at the depot, as he would be ‘on the road’ supervising the contracts; albeit the claimant would normally be there to lock up at night. Mr Robinson was suspicious when he found the claimant was not there and he asked Mr Healey, the other supervisor, whether the claimant off playing golf. The tribunal is satisfied that Mr Healey did not directly admit this to Mr Robinson; but he may said something along the lines “those are your words Sam”. Despite this which did not allay his suspicions, Mr Robinson took no steps to speak to the claimant, about his whereabouts at that particular time, although the claimant had a company mobile to enable him to be contacted when he was ‘on the road’ Mr Robinson took no note or record of this incident and could not recall the precise date.
2.16 The tribunal is satisfied that the claimant, in essence, was given considerable flexibility by the respondent in organising his time off. Further, it is satisfied that, on many occasions, the claimant would take some hours off, including to play golf and would contact Pat Parker in the office to set this off against call-out fees he would otherwise have been entitled to and he would then reduce the relevant hours on his timesheets accordingly. Pat Parker did not give evidence nor was there any evidence that Mr Robinson spoke to Pat Parker about such arrangements, during the course of the disciplinary procedures relevant to this matter. The tribunal is satisfied this system would have grown up over the years between the claimant and Pat Parker, without any direct involvement of senior management, such as Mr Robinson; it was somewhat haphazard and lacked proper precision in recording and clearly depended much on the trust between the claimant and Pat Parker. The claimant, arising out of these arrangements, which had in effect became ‘custom and practice’, believed when taking such time off, he did not have to inform or seek the permission of Mr Robinson; albeit, on occasion, he might have told him but this was more as a matter of courtesy if he happened to see him or speak to him at the relevant time.
2.17 On 22 May 2013, on foot of such arrangements, the claimant does not dispute he left his work early to play golf, having ensured if any work issue arose it would be covered by a senior joiner. Mr Robinson, unknown to the claimant at the time, saw him put his golf clubs in the van as he left the yard. The tribunal accepts that, after seeing the claimant leave the yard with the golf clubs in the van, Mr Robinson confirmed with Mr Healey the claimant had gone to play golf on that day. Indeed, it would appear that the claimant had not made any secret to Mr Healey that he was going to play golf on that day. However, the tribunal does not accept that Mr Healey said any more to Mr Robinson. Mr Healey did not attend to give evidence and was not therefore available to be cross-examined (see before). In particular, in these circumstances, the tribunal could give no weight to suggestions contained in Mr Healey’s witness statement that the claimant had sought to cover up his playing of golf, which allegation the claimant expressly denied in evidence. The tribunal also found it significant that, if any such suggestions had been made by Mr Healey to Mr Robinson, these were not expressly raised at the disciplinary meeting or referred to in the pre-prepared questions prepared by Mr Robinson in advance of the meeting, to which further reference shall be made later. In error and having taken no role, Mr Robinson believed the relevant date was 21 May 2013. Since the claimant accepted the relevant was 22 May 2013, the tribunal placed no great significance on the error, save that it showed the lack of recordkeeping by Mr Robinson.
2.18 The tribunal accepts, on the basis of the incident in late April/early May 2013 and the incident on 22 May 2013, that Mr Robinson clearly had some suspicions about what the claimant was doing during his normal work hours; but it was no more than a suspicion. On 31 May 2013, the claimant did ask Mr Robinson for some time off to play golf on 3 June 2013, to which Mr Robinson agreed. During that conversation, the tribunal believes Mr Robinson did ask him about whether he had taken time off on 24 May 2013 and 28 May 2013 to play golf and that the claimant did not give him a categorical denial and provided him with some vague non-committal answer, which Mr Robinson took to be an admission on the part of the claimant. It would have been better if the claimant had given him a proper detailed answer, as many of the difficulties which occurred later might have been avoided. The tribunal is of the opinion that, because the operation of his arrangements with Pat Parker in relation to time off, that he could only give such a detailed answer by careful scrutiny of his records/timesheets and, without the time to do so, he felt it necessary to give Mr Robinson the vague non-committal answer. This only heightened Mr Robinson’s suspicions. However the tribunal does not accept the claimant admitted to Mr Robinson he played golf on that date or 28 May 2013. The tribunal also notes that, again, Mr Robinson, if such age discrimination admission had been made, took no record of it.
2.19 During the disciplinary meeting on 11 June 2013, the claimant was confronted by Mr Robinson by a series of pre-prepared questions about his movements on a number of dates in May 2013, including 24 May 2013 and 28 May 2013. In answer the claimant stated, according to the verbatim record “playing golf”. The claimant insisted in evidence that he did not say this but rather he said he could not remember, in the absence of looking at his diary. The list of questions referred to various dates and times, of which the claimant did not have any pre-knowledge. It has to be remembered that this was not an investigatory meeting but rather a disciplinary meeting, after which decisions would be taken in relation to the claimant’s employment with the respondent. Indeed, the tribunal is satisfied, that in the absence of any information, verbal or otherwise, prior to the meeting of any details of the allegations and of any dates, times and records to be relied upon by Mr Robinson, the claimant was put at a distinct disadvantage and would have required time to consider his own diary/records – not least given the arrangements for such absences he had with Pat Parker. No such time was given or offered to him by Mr Robinson; although it must have been obvious to Mr Robinson the claimant needed time to consult his record, including relevant timesheets/diary entries. It was not therefore surprising, as the meeting continued, which was short, that the claimant, in effect, refused to answer and merely frequently stated “no comment”, as he was not in a position to give a proper and accurate answer to the questions asked. Indeed the claimant’s ability to answer was acknowledged in the subsequent dismissal letter of 25 June 2013 (see later); but Mr Robinson took no steps to hold a further meeting before dismissing the claimant.
2.20 On 25 June 2013, Mr Robinson wrote to the claimant following the disciplinary meeting in which he stated, inter alia:-
“ ... We are writing to confirm the decision reached in respect of the allegations put to [sic] on 5th of June and your subsequent attendance at a disciplinary hearing at our office on 11th of June.
At the outset of the hearing you did indicate that you may not be willing to answer some or all of the questions put to you. A copy of the notes of that meeting are attached for your perusal.
By way of your own admission you did confirm that you did leave your place of work, and in your own words ‘a couple of hours early’ on Friday the 24th of May and Tuesday the 28th of May to play golf. You were unwilling however to answer what time you actually left your place of work and were unwilling to answer if you used the company van to travel to the golf course.
Based on enquiries within the firm we are satisfied that gross misconduct did take place on the dates above and we are also satisfied that this was not an isolated incident but was a regular practice on your behalf. Such was the familiarity of your actions that it was noted to you by your co-workers that you should notify your absence and that of leaving your place of work without permission.
In addition, examination of timesheets submitted by you for week ending 28th of May (copy enclosed) for which you confirm leaving to play golf ‘a couple of hours early, on Friday the 24th of May and Tuesday 28th of May’ indicate a record of by you of 41 hours, therefore failing to show the absence from your place of work on the dates in question.
We are satisfied that gross misconduct has taken place and that you showed disregard for your responsibility within the firm and abused your position of foreman and abused the trust that was bestowed on you within your role.
On the basis of the above we have decided to terminate your contract of employment with immediate effect. This will not affect accrued holiday entitlement. Your P45 will be forwarded to you along with final payment.
We would confirm that you have the right to appeal this decision. If you wish to do so you should forward your letter of appeal to us within five working days.”
The reference to enquiries within the firm was to conversations between Mr Healey and Mr Robinson but were not put to the claimant at any time during the disciplinary meeting.
2.21 The notes enclosed with the letter of 25 June 2013 showed numerous significant differences from the verbatim record taken at the time of the meeting in relation to pre-prepared questions typed up by Mr Robinson prior to the meeting. Both sets of notes also revealed that Mr Robinson also wished to rely on an allegation that the claimant had disclosed confidential information to a third party, but about which the claimant had had no notice whatsoever, prior to the meeting. In view of the tribunal’s decision in this matter it is not necessary to set out, in detail, the said differences.
However, by way of example, the verbatim record taken at the time of the meeting stated:-
“At this time you were also advised that you were off a couple of hours on
(a) Tuesday 28th of May 2013
(b) Friday 24th of May 2013
Where were you on the afternoon of these dates?
Playing golf (in handwriting).”
In the typed notes of the meeting enclosed with the letter of 25 June 2013, by way of contrast, it was stated:-
“RF You advised me on Friday 31st of May that you required time off on Monday 3rd of June. You also advised at this time that you’d taken a couple of hours off on Friday 24th of May and also Tuesday 28th of May.
RF Where were you on the afternoon of these dates?
FW On business.
RF On business.
FW Playing golf.”
The claimant was given no opportunity before the decision to dismiss him, to agree the said notes of the meeting, which as stated above, contained various significant differences. He was not given the opportunity in relation to the matters in which he had stated “no comment/can’t recall” to consider his position, having consulted his records/ timesheets, and either verbally or in writing to respond to the various allegations put to him during the course of the meeting.
2.22 Further, enclosed with the dismissal letter, a copy of a timesheet relied on by the respondent in concluding the claimant had falsified his timesheet was for the week ending ’28/5’. Although, this timesheet had been referred to during the course of the meeting, the claimant was not provided with a copy, either before or at the meeting, and did not see it until it was enclosed in the said letter. Upon receipt, the claimant checked his work records which he had in his folder and he found that the timesheet, which he had faxed to Pat Parker for the week ending 28 May did not bear resemblance to the timesheet forwarded by Mr Robinson in the dismissal letter. The sheet, which the claimant had forwarded to Pat Parker at the relevant time, for this date, recorded his time as being 40 hours work plus standby plus one call-out whereas the timesheet, similarly faxed, for 30 April 2013, recorded his time as 41 hours plus standby two call-outs. What had been sent by the respondent in the dismissal letter, and relied upon as the relevant timesheet for 28 May 2013 for the finding of falsification of records, was in fact the timesheet for 30 April 2013. How this error came about was difficult to explain as there was some curious cutting out of relevant dates on the top of the form sent to the claimant in the dismissal letter. Indeed, Mr Robinson struggled to explained it at the hearing and as forced to admit it was sent in error. However the error arose, it had clearly been wrongly relied upon by the respondent for the purposes of the dismissal letter and, in particular, the finding that the claimant had falsified time records.
2.23 The dismissal letter dated 25 June 2013, was only received by the claimant on 3 July 2013, which is probably accounted for by the fact that the claimant lives in Donegal. The dismissal letter, whilst referring, as set out above, to some findings in relation to leaving work without permission and falsification of records, namely timesheets, there was no express reference to the allegation of unauthorised use of company vehicle. There was some considerable dispute between the parties at the hearing in relation to whether or not the claimant had requested an appeal. The claimant contended that he had handed a written request for appeal to Mr Robinson, in person, at the Strabane yard when he spoke to him on 5 July 2013; albeit not, as he had stated in his claim form, 9 July 2013. He stated that this was a typographical error on the form. In any event, whatever the date, Mr Robinson denied that he had ever received such a letter. Unfortunately, the claimant did not keep a copy, as he said the discussion with Mr Robinson was friendly and Mr Robinson had assured him that they would be able to sort the matter out and have a chance to talk about things at the next meeting and he would be in touch in a few days. The claimant took this to mean the appeal. The claimant contended that, as he had heard nothing, he went to the Strabane yard on 17 July 2013 and again spoke with Mr Robinson. Again, he said the conversation was friendly and that Mr Robinson told him he had forgotten but that as the holidays were coming up he would be in touch following the holiday period. The claimant said that, during the course of this conversation, he also informed Mr Robinson that he had not been paid for eight days to which he was entitled in respect of holiday pay. It is correct that the claimant received on 12 August 2013 a letter from Mr Robinson dated 31 July 2013, which stated:-
“With reference to your request for eight days’ pay to which you feel entitled. On examining our records it would appear that no further payments are due to you and that we have discharged fully any outstanding amounts in respect of holiday pay/pay to you.
At this stage it may be possible that an overpayment exists and this will be investigated and notified to you as soon as possible. Due to current holiday period we will be available over the next two weeks, but will be in contact with them [sic] thereafter.”
Mr Robinson, by way of contrast, contended that, not only was no such letter was ever received from the claimant, there was no such discussion in relation to an appeal between himself and the claimant. It is apparent from the letter, dated 31 July 2013 from Mr Robinson relating to the issue of holiday pay, that there must have been some conversation, as the claimant has stated, between Mr Robinson and the claimant in the Strabane yard, following the receipt of the letter of dismissal. In these circumstances, and bearing in mind the lack of accuracy by Mr Robinson in relation to the minutes of the meeting, the general lack of recordkeeping and the timesheet sent in error and relied upon by him in relation to dismissal, the tribunal decided, on balance, that the claimant had, as he stated, sent a written letter of appeal and that, despite having done so, no such appeal was ever arranged for the claimant by the respondent.
2.24 The tribunal is satisfied that, if an appeal had been arranged, that the claimant would have produced relevant evidence to show that the timesheet relied upon by the claimant, as enclosed in the dismissal letter was in error, as referred to above. Further, he would have produced evidence in relation to 24 May 2013, in particular, to show that he had not been playing golf as alleged, but rather he had been carrying out his duties, in particular, in relation to repairs which required to be carried out at the premises of Margaret Owens, a tenant of the NIHE. In the course of the hearing, Alan Brady, a joiner, who had assisted in this work, gave evidence in support of the claimant on this issue. There was also, as indicated previously, a written statement by Margaret Owens, who did not give evidence and was not able to be cross-examined by the respondent. In general terms, the hearsay evidence of Mrs Owens was supportive of the claim made by the claimant, and confirmed by Mr Bradley, that he was not playing golf at the relevant time but rather was working at her premises. In relation to the allegations of 28 May 2013, the claimant was unable to recall precisely where he was at the relevant time; but, undoubtedly, he would have denied that he was playing golf on that day, and that the only time that he had left early to play golf was 22 May 2013 at that relevant period. This he had already admitted, as set out above. In this context, it is also to be noted Mr Robinson, in his dismissal letter had relied on a timesheet, which did not relate to 28 May 2013 and was clearly in error, and was the only record produced by Mr Robinson, in evidence, in relation to that date.
2.25 In evidence to the tribunal, Mr Robinson stated that, having decided that the claimant’s conduct was that of gross misconduct, he did not consider any other sanction against the claimant.
2.26 On the basis of the limited evidence before the tribunal, and, in particular, the limited nature of the records produced in relation to holiday pay, the tribunal had difficulty in determining whether the claimant was owed the eight days’ holiday pay, which he claimed at the termination of his employment and which had been rejected by the respondent in his letter, dated 31 July 2013. Apart from his denial, in evidence, Mr Robinson did not produce any relevant records to properly challenge the claimant’s claim. It was agreed eight days’ holiday pay amounted to £403.44 (8 x £50.43). In the circumstances, given the claimant’s unchallenged explanation of how his holidays were calculated and in the absence of Pat Parker, the tribunal decided, with some hesitation, the claimant was entitled to the said eight days’ holiday pay at the termination of his employment.
2.27 The tribunal is satisfied that the claimant has attempted to obtain alternative employment but this has been difficult due to the financial downturn, in particular, in the construction industry, both in Northern Ireland and in the Republic of Ireland. The tribunal is satisfied that the claimant has made attempts to do so, albeit unsuccessfully since his dismissal. Most of these would have been verbal attempts with contacts in the industry, which he had made over his years of working with the respondent, and therefore there were no relevant records. The tribunal suspects that some of the recent correspondence in relation to attempts to obtain alternative employment, again unsuccessful, were guided, to some extent, by his representatives for the purposes of these proceedings, knowing there were no other written records able to be produced. The tribunal is satisfied, on the evidence before it, although the claimant has clearly carried out some limited work, since his dismissal, for Tyrone Roofing Services, that he did so, not as an employee of Tyrone Roofing Services, but rather as work done by the claimant in discharge of a private debt owed by the claimant for work done by Tyrone Roofing Services at the claimant’s own home. It was a somewhat unorthodox arrangement but the tribunal was not able to find any records of payments in the claimant’s bank accounts produced at the hearing, which would suggest the arrangement was other than as stated above and, in particular, he was an employee at the relevant time, but Tyrone Roofing Services provided to the claimant’s representatives a letter, on headed notepaper, confirming the above arrangements, which in the circumstances the tribunal had no reason to doubt.
3.1 Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-
“An employee has the right not to be unfairly dismissed by his employer.”
Article 130 of the 1996 Order provides:-
“(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 (if more than one the principle) for the dismissal; and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
...
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) if a duty or restriction imposed by or under a statutory provision.
...
(4) Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons 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 as treating it as a sufficient reason for dismissing the employee; and
(c) shall be determined in accordance with equity and the substantive merits of the case.
...
(6) Paragraph (4) is subject to Article 130A ... .”
Article 130A of the 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 I 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 completed; 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 procedure in relation to the dismissal of an employee shall not be regarded for the purpose 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.”
Article 154(1A) of the 1996 Order provides 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,
(b) an award of compensation falls to be made ... and
(c) the amount of an award ... is less than the amount of four weeks’ pay,
the industrial tribunal shall, subject to Paragraph (1B) increase the award ... to the amount of four weeks’ pay.
(1B) An industrial tribunal shall not be required by Paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.”
3.2 Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduce, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005. They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.
In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-
(a) standard dismissal and disciplinary procedures (DDP);or
(b) a modified DDP.
There was no dispute that the latter procedure was never applicable in this matter.
Under the standard DDP it is provided 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) Meeting must take place before action is taken, except in the where the disciplinary action consists of suspension.
(2) Meeting must not take place unless –
(a) the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and
(b) the employee has had a reasonable opportunity to consider its 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 its 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.
Meeting
(13)
(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner which enable 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).”
(iii) Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-
“(1) If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, … non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”
(iv) Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.
(v) Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.
3.3 The Employment Appeal Tribunal, in the case of Venniri v Autodex Ltd [UKEAT/0436/07] at Paragraph 34, held the tribunals are under duty to consider whether or not a dismissal is automatically unfair (under the equivalent provisions in the Employment Rights Act 1996 [which then applied in Great Britain] to Article 130 of the 1996 Order), even where that allegation has not been expressly pleaded, which was the case in the present proceedings, on the grounds that these provisions are part of the ‘essential fabric of unfair dismissal law’. The Employment Appeal Tribunal has also held, in the case of Metrobus Ltd v Cooke [UKEAT/0490/06] (Paragraphs 27 – 29), where a tribunal has made a finding of automatic unfair dismissal, pursuant to similar provisions in the Employment Rights Act to Article 130A(1) of the 1996 Order, it may be ‘useful’ for the tribunal to record its judgment, in the alternative, on the ‘ordinary’ unfair dismissal allegation, (ie pursuant to Article 130 of the 1996 Order).
3.4 Failure to comply with the relevant statutory dismissal procedures has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or in an adjustment downwards (in the case of default by the employee). Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the tribunal considers it just and equitable, up to 50%. However, 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; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order).
3.5 Although the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales are not binding on this tribunal; however, the tribunal, in the absence of any relevant decisions in the Court of Appeal in Northern Ireland in relation to the said statutory dismissal procedures (see later) has found the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales, in relation to such matters, persuasive and appropriate to follow – in particular, in circumstances where the decision of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales relate to provisions, which were then applicable in Great Britain, and which were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above. The Employment Appeal Tribunal and/or the Court of Appeal in England and Wales has been reluctant to set down principles that fetter the discretion of a tribunal in relation to this issue of the uplift and reduction of the compensatory award in relation to a finding of automatic unfair dismissal (see Cex v Lewis [UKEAT/0031/07].
In Metrobus Ltd v Cooke [UKEAT/0490/06] the EAT did not interfere with an uplift of 40% where the employer had ‘blatantly’ failed to comply with the obligation to send a Step 1 letter and acknowledged that the uplift provisions were more ‘penal than compensatory in nature’. In Davies v Farnborough College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift could apply where there had been a complete and deliberate breach of any procedures. Subject to what is set out below, ultimately the extent of any uplift would appear to be a matter within the discretion of a tribunal, having regard to all material circumstances, which are unlimited. Further, the statutory provisions do not require the tribunal to start at an uplift of 50% and work downwards in accordance with evidence of mitigation provided by the respondent (see Butler v GR Carr (Essex) Ltd [UKEAT/0128/07]. However, in the case of Aptuit (Edinburgh) v Kennedy [UKEATS/0057/06], the Employment Appeal Tribunal (in Scotland) held that, when exercising its discretion to uplift an award, the only circumstances which the tribunal may take into account are those surrounding the failure to complete the statutory procedure. In the case of McKindless Group v McLaughlin [2008] IRLR 678, the Employment Appeal Tribunal (in Scotland) has again confirmed that, in exercising the discretion the tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further. Somewhat controversially, the EAT held that an uplift should not follow if the employer does not explain the reasons for the failure to comply, on the grounds that the statutory provisions do not oblige the employer to explain the failure.
In the case of Virgin Media Ltd v Seddington & Another [UKEAT/0539/08], Underhill J applied the McKindless Group case and confirmed that a (if not the) primary factor requiring to be taken into account in exercising the discretion in relation to whether an uplift was applicable, related to how culpable the failure to employ the statutory procedures was. Underhill J accepted that, in some circumstances, failure to employ the statutory procedures might speak for itself. In addition he said that the issue of uplift should not be approached too mechanistically, as had occurred in the particular facts of that case. In Abbey National Ltd v Chagger [2009] IRLR 86, Underhill J held that it was legitimate for a tribunal to take into account the overall size of an award, when deciding the amount of an uplift.
In the case of Wardle v Credit Agricole [2011] EWCA Civ 545, Elias LJ reviewed all the authorities and stated:-
“18 Before answering this question, it is necessary to consider the principles which should inform a tribunal when exercising its Section 31(3) discretion.
25 As Lady Smith pointed out giving the judgment of the EAT sitting in Scotland in McKindless Group v McLaughlin [2008] IRLR 678, Paragraph 13, this requires a tribunal to explain what facts or circumstances surrounding the failure to comply make it just and equitable to go beyond the minimum at all. This should not be an automatic response whenever the tribunal thinks that the breach is more than minor. On the contrary, there must be something about the particular circumstances which justifies the conclusion that 10% would be inappropriate and ought to be increased. The circumstances need not be exceptional, otherwise that word would have been used here as it is in sub-section (4), but in my judgment they must be such as to clearly justify concluding that the starting point of 10% would not adequately reflect the degree of culpability.
...
In a recent case, before the Court of Appeal in Northern Ireland, in the case of Brinks Ireland Ltd v Hines [2013] NICA 32, one of the issues which the Court could have been required to consider on appeal was the uplift of 50%, in circumstances where the tribunal had found that the dismissal was unfair; but, in the event, the Court of Appeal remitted the case to the industrial tribunal to further consider the nature of the dismissal and, in light of same, the application (if relevant) of the said uplift provisions. The industrial tribunal, upon remittal, decided the claimant was expressly, deliberately and unfairly dismissed and affirmed the its earlier decision of a 50% uplift of the compensatory award. This subsequent decision was not the subject of appeal. In a decision in the Court of Appeal in the Northern Ireland, in the case of Lewis v McWhinney’s Sausages Ltd [2013] NICA 47, the provisions relating to an uplift, pursuant to Article 17(3) of the 2003 Order were also, inter alia, the subject-matter of the proceedings; but in the event, it was again not necessary for the Court of Appeal to make any observations on the said provisions, relating to uplift, when dismissing the appeal.
3.6 In considering the statutory dismissal procedure, to which reference has been made above, in the case of Lewis v McWhinney’s Sausages Ltd [2013] NICA 47, in the course of his judgment, Morgan LCJ, delivering the judgment of the Court, referred to the requirements of these provisions, as referred to by the Employment Appeal Tribunal in the case of Alexander v Bridgen Enterprises Ltd [2006] ICR `1277, when he stated:-
“In Step 1 the employer merely had to set out in writing the grounds which lead him to contemplate dismissing the employee. Under the second step the basis for the grounds was simply the matters which had led the employer to contemplate dismissing for the stated grounds. The objective is to ensure that the employee is not taken by surprise and is in a position to deal with the allegations. The letter of 20th of May 2010 identified the occasion on which the alleged insubordination occurred and identified verbal abuse as to the nature of the insubordination. The letter was sent two days after the meeting of which a complaint was made so the appellant was in a good position to contradict any alleged statement or explain anything said by him. In those circumstances the letter satisfied both of these tests so that no failure to comply with the statutory procedures arose in this case. The statutory procedures do not require the employer to set out the evidence in respect of the matter as an issue although it can be helpful if the employer chooses to do so.” (See Paragraph 23 of the judgment)
(See also further Paragraph 4.4 of this decision in relation to the relevance of appeals in any dismissal procedure.)
3.7 In particular, in Alexander, the Employment Appeal Tribunal stated that the Step 1 statement should:-
“Do no more than state the issue in broad terms ... the employee simply needs to be told that he is at risk of dismissal (or, presumably, other disciplinary action) and why (Paragraph 38). In conduct cases, the Step 1 statement will need to ‘[identify]’ the nature of the misconduct in issue, such as fighting, insubordination or dishonesty, In other cases it may require no more than specifying, for example, that it lack of capability or redundancy.”
(See further Cartwright v Kings College London [2010] EWCA Civ 146)
In Sahatciu v DPP Restaurants Ltd [UKEAT/0177/06] it was held that ‘A widely pedantic reading of the DPP is as unattractive as an overly technical construction of a Step 1 grievance letter under the statutory grievance procedure (the statutory grievance procedure is now repealed in Great Britain and Northern Ireland)’.
In the case of YMCA Training v Stewart [2007] IRLR 185, Underhill J, as he then was, referred to the statement as a statement in ‘headline terms’ – Paragraph 9.
Somewhat surprisingly, in the case of Homeserve Emergency Services Ltd v Dixon [UKEAT/0127/07], the Employment Appeal Tribunal held that an employer’s letter had complied with Step 1 even where it did not say where that it was contemplating dismissal. However, this was because, according to the Employment Appeal Tribunal, it was ‘implicit’ from a letter inviting the employee to a ‘formal disciplinary meeting’ for ‘breach of contractual obligations’ that it was contemplating with some disciplinary action. However, in Zimmer Ltd v Brezan [UKEAT/0294/08] the Employment Appeal Tribunal held that a Step 1 letter was defective because it did not specifically inform the employee that he was at risk of dismissal (and, on the facts, that there was no contacts that could save it). In the case of Draper v Mears [2006] IRLR 869, the Employment Appeal Tribunal held that it was sufficient in a case involving dismissal for driving a vehicle after consuming alcohol for the Step 1 letter, to refer only to ‘conduct which fails to reasonably ensure the health and safety of others’. Indeed, the Employment Appeal Tribunal held that, where there is ambiguity over the content of the Step 1 letter, the tribunal is ‘entitled to look at the whole context’ in order to resolve any such ambiguity. It may be thought that this is somewhat similar to the relevance of context which was referred to by Elias P in the well-known case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416, when considering the then somewhat similar provisions relating to the statutory grievance procedures (now repealed). The Employment Appeal Tribunal held that looking at the whole matter in context, made it impossible for Mr Draper, who ‘knew full well the allegations against him before the Step 1 letter reached him’, to argue there had been non-compliance with the DDP that rendered his dismissal automatically unfair. In Draper, the Employment Appeal Tribunal also noted that, while the Step 1 letter and the Step 2 meeting are separate matters, it may often be the case that Step 2 is complied with before Step 1.
In YMCA Training v Stewart [2007] IRLR 185, the Employment Appeal Tribunal suggested that tribunals should not ‘be distracted by the fact that the parties have been following an internal procedure with more elaborate requirements and different terminology from those required by the statute : it is necessary to look between the parties own labels and focus on whether the substantial requirements of the statute, which are simple and non-technical terms, were or were not met’.
In Cartwright, the Court of Appeal emphasised a prior oral exchange could not fill a gap in the statutory procedure since the procedure required a statement of the minimum information in writing stating, ‘if the opposite were true, it would mean an employer could send an employee a statement saying no more than ‘Re our discussion yesterday, please come to a meeting tomorrow to discuss it further’ and then proffer it as a sufficient Step 1 statement as proof the discussion had covered the headline information required to be included in such a statement’. The court also made clear the writing and sending of a Step 1 statement was an elementary exercise requiring minimal skill, and any employer familiar with the requirements had only himself to blame if he was unable to create and send the necessary statement.
3.8 In relation to the Step 2 meeting, Employment Appeal Tribunal in Alexander considered the nature of the information the employer must give to the employee in order to inform him of the ‘basis’ for the concerns in the Step 1 statement. In particular, it noted the following:-
“(i) To comply with Step 2, the information does not need to be in writing and can be given orally. [Paragraph 39]
(ii) The information is ‘an explanation ... as to why the employer is contemplating dismissing that particular employee’. [Paragraph 41]
(iii) In misconduct cases, the information required involves ‘putting the case against the employee’. This does not require ‘detailed information’ but ‘sufficient detail ... to enable the employee properly to put forward his side of the story.” [Paragraph 40]
As noted above, it may be permissible for a Step 2 requirement to be complied with before a Step 1 requirement; thus the stages of the statutory procedure are not necessarily sequential. However, failure to comply with the Step 2 requirement cannot be cured at the Step 3 appeal; (see Davies v Farnborough College of Technology, Paragraph 19 [2008] IRLR 14). In Davies, Burton J, in a case relating to dismissal for redundancy, said it was necessary to give sufficient information to allow the employee both to understand and to challenge why it was proposed to dismiss him for redundancy.
Again, in view of the absence of any relevant decisions by the Court of Appeal in Northern Ireland, other than the Lewis v McWhinney’s Sausages Ltd, referred to above, in relation to the statutory dismissal procedures, the tribunal considered it relevant to consider and follow, as appropriate, the various decisions of the Employment Appeal Tribunal and Court of Appeal in England and Wales, as referred to above when considering the proper interpretation of the said statutory dismissal procedures and, in particular, the three step process referred to in the said procedures.
3.9 Following the introduction of the new statutory dismissal procedures, Article 130A(1) and (3), as set out above, provided a dismissal was automatically unfair if the new procedures were not followed.
3.10 Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey v AE Dayton Services Ltd [1988] ICR 344 (‘Polkey’). However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1). Article 130A(2) of the 1996 Order therefore is only of application where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than statutory dismissal procedures.
4.1 In relation to the alternative claim of ‘ordinary’ unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, there was no dispute by the representatives that the burden was on the respondent to establish the reason relied upon by it. The question of whether it did in fact justify the dismissal requires the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order. (See further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 8, and Mental Health NHS Trust v Sarkar [UKEAT/0479/08], where it is established in relation to the issue of fairness, there is no burden of proof on any party).
4.2 In relation to a case where the reason for the dismissal is found to relate to the conduct of the claimant, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the tribunal, as set out above, then has to determine the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously.
Applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-
“(i) whether the employer had a genuine belief in the guilt of the employee;
(ii) whether it had reached that belief on reasonable grounds;
(iii) whether this was following a reasonable investigation; and
(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”
As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral’ burden of proof (see further DSG Retail Ltd v Mackey [2013] UKEAT/0054/13 and Singh v DHL Services [2013] UKEAT/0462/12]).
In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.
In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-
“ …
(1) the starting point should always be the words of [Section 57(3)] themselves;
(2) in applying the Section the 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.”
It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-
“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”
In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-
“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”
The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin v Citybus Ltd [2008] NICA 42 and Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26. In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-
“The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”
As Underhill LJ emphasised in Stuart v London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test. He acknowledged that different tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-
“ ... two tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”
4.3 In a recent decision in the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-
“It is not for ET to conduct a primary fact-finding exercise. It is there to review the employer’s decision. Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)
Further, in Turner v East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-
In those paragraphs of his judgment, referred to by Sir Stephen Sedley, Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr v Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows (Paragraph 78):-
“ …
(4) In applying that sub-section, the employment tribunal must decide on the reasonableness of the employer’s decision to dismiss for the ‘real reason’. That involves a consideration, at least in misconduct cases, of three aspects of the employer’s conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employer believe that the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is ‘yes’, the employment tribunal must then decide on the reasonableness of the response by the employer.
(5) In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found on the particular employee. If it has, then the employer’s decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse.
(6) The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable’ employer might have adopted.
(7) The particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.
(8) An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.”
Further, Lord Justice Elias emphasised ‘the band of reasonable responses test’ is not a subjective test and it is erroneous so to describe it – “it provides an objective assessment of the employer’s behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly”.
Elias LJ also at Paragraphs 20 – 22 of his judgment observed:-
“(20) When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee’s opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.
(21) In A v B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-
‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’
This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457, Paragraph 13.
(22) The test applied in A v B and Roldan is still whether a reasonable employer could have acted as the employer did. However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.”
(See also Crawford v Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).
In a recent decision of the Employment Appeal Tribunal, in the case of Mitchell v St Joseph’s School, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-
“The point is that the duty of the employment tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer.”
4.4 As stated previously, a dismissal is capable of being fair if for a reasons which ‘relates to the conduct of the employee’ (see Article 130(2)(b) of ERO 1996). Reference is to conduct in general terms, and such conduct does not necessarily have to be gross misconduct for the purposes of the Article. Indeed, gross misconduct is not defined in the legislation.
In Chhabra v West London Mental Health NHS Trust [2014] ICR 194, the Supreme Court confirmed that to be gross misconduct it should be conduct which would involve a repudiatory breach of contract; that is conduct undermining the terms and conditions which is inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment (see Neary v Dean of Westminster [1999] IRLR 288 approved by the Court of Appeal in Dunn v AAH Ltd [2010] IRLR 709). As was held in Sandwell and West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT/0032, is a mixed question of fact and law and, as a matter of law it involves either deliberate wrongdoing or gross negligence on the part of the claimant. It is therefore necessary for a tribunal to assess whether the conduct in question was such as to be capable of amounting to gross misconduct but without falling into the ‘substitution mindset’ referred to by Mummery LJ in London Ambulance Service NHS Trust v Small, referred to previously. Even if it is concluded the employer was entitled to conclude the conduct of the employee was an act of gross misconduct the issue of the proper sanction to apply still requires to be considered.
In determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer. As stated by Philips J in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251:-
“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible.”
In the case of Brito-Bubapulle v Ealing Hospital NHS Trust [2013] UKEAT/0358/12, Langstaff P has emphasised that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses and a tribunal must assess whether it was reasonable in all the circumstances to dismiss an employee for such gross misconduct. This requires a tribunal to consider any relevant mitigating factors which might mean dismissal was not reasonable. Such factors might include, for example, length of service, the fact that such service was previously unblemished and the consequences of dismissal for future employment (see further Roldan, referred to above, Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382).
4.5 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-
“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”
In a recent decision, the Employment Appeal Tribunal, in the case of Holt v Res On Cite Ltd [2014] UKEAT/0410 it was emphasised that the tribunal’s role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd v Parhar [2012] UKEAT/0643]).
In McMaster v Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-
The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing. As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be advise to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”
See further West Midlands Co-Operative Society Ltd v Tipton [1986] AC 536) In London Probation Board v Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, HH Judge McMullan QC made clear:-
... the whole point of internal appeals is to allow for bad or unfair decisions to be put right.”
In a recent decision of the Employment Appeal Tribunal in the case of Blackburn v Aldi Stores [2013] UKEAT/0185, the Employment Appeal Tribunal, in a case of unfair constructive dismissal, held that, where an employee was denied an effective appeal in relation to an appeal against a decision on foot of the claimant’s grievance, because it was decided by the same manager who took the original decision, this could be a breach of trust and confidence for the purposes of such a claim. The present proceedings, being a case of ‘direct’ unfair dismissal, are clearly based on a very different factual scenario. However the Employment Appeal Tribunal in the above decision emphasised that a right to an appeal is a significant right in the employment context. It must also be noted it has long been established that a failure to hold a proper appeal can render a ‘direct’ dismissal unfair (and will be more significant where the procedure is contractual) – see West Midlands Co-Operative Society Ltd v Tipton [1986] IRLR 112.
The above dicta in relation to the importance of an appeal procedure clearly have relevance to any consideration of issues of uplift if there is a failure to provide an appeal under the statutory dismissal procedure.
4.6 In the well-known House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal. Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.
However, although the tribunal that might find that dismissal to be unfair, the tribunal, following Polkey, was able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed. A Polkey reduction therefore required an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.
4.7 Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.
Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly. The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).
4.8 However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with. Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt v CAFCSS [UKEAT/0362/07]). As was made clear in the case of Goodin v Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal. If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair. Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.
4.9 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed. Using its common sense experience and sense of justice in the normal case, that would require to assess for how long the employee would have been employed but for the dismissal. However, it is for the employer who 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, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself. As Elias J stated in his judgment:-
“The mere fact an element of speculation was involved was not a reason for the tribunal refusing to have regard to the evidence.”
In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd v Andrews and stated:-
“ ... If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely. Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... .”
In a recent decision of the Employment Appeal Tribunal in the case Dev v Lloyds Tsb Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P emphasised the following:-
“6. A tribunal asked to consider a Polkey question must ask not what would have happened, but rather what might have happened. To ask what would have happened asks for a decision, effectively, on the balance of probability, with a straight yes or no answer. [tribunal’s emphasis]. The second looks at the matter as one of assessment of chances. It is well established that the latter is the correct approach ... (see further Ministry of Justice v Parry [2013] ICR 311, Hill v Governing Body of Great Tey Primary School [2013] ICR 691).”
4.10 In the case of Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-
“(i) the tribunal must take a broad common sense view of the situation;
(ii) that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;
(iii) what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and
(iv) the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”
In Allders International Ltd v Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.
In a recent decision of the Employment Appeal Tribunal in the case of Steen v ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% reduction for contributory fault. He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it. Langstaff P noted that Polkey deductions and deductions for contributory fault are approached on different basis and do not directly overlap:-
“That is because the focus in a Polkey decision is predictive, it is not historical, as is the focus when establishing past contributory fault as a matter of fact. Second, Polkey focuses upon what the employer would do if acting fairly. Contributory fault is not concerned with the action of the employer but with the past actions of the employee. A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”
4.11 Article 156(2) of the 1996 Order, provides in relation to the issues of the amount of a basic award and contribution on the part of the claimant:-
“Where the tribunal considers 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 1996 Order, provides in relation to the issues of the amount of a compensatory award and contribution on the part of the claimant:-
“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.”
4.12 In the Northern Ireland Court of Appeal, in the case of G McFall & Company Ltd v Curran [1981] IRLR 455, which would normally be binding on this tribunal, it was held that the general rule is that both the basic and the compensatory awards should be reduced by the same amounts. It should be noted, however, that the relevant legislation in Northern Ireland at the time of that decision was differently worded to that now seen in the 1996 Order. In particular, the provisions relating to both a basic award and a compensatory award were in similar terms to that now seen in Article 157(6) of the 1996 Order and both provisions, at that time, therefore had reference to causation/contribution.
Now Article 156(2) and Article 157(6) of the 1996 Order, as set out previously, are in similar terms of those set out in Sections 122(2) and 123(6) of the Employment Rights Act 1996, which applies in Great Britain.
As has been made clear in a recent decision of Langstaff P in the case of Steen v ASP Packaging Ltd [2013] UKEAT/0023/13:-
“The two sections are subtly different. The latter calls for a finding of causation. Did the action which was mentioned in Section 123(6) cause or contribute to the dismissal to any extent? That question does not have to be addressed in dealing with any reduction in respect of the basic award. The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent. Both sections involve the consideration of what is just and equitable to do.”
He also points out that, in applying the provisions of Section 123(6), if the conduct which it has identified and which it considered blameworthy did not come or contribute to the dismissal to any extent, then there can be no reduction, pursuant to Section 123(6), no matter how blameworthy in other respects the tribunal might consider the conduct to have been. If it did cause or contribute to the dismissal, then issues arise to be determined in relation to what extent the award should be reduced and to what extend it is just and equitable to reduce it.
Langstaff P emphasises that:-
“A separate question arises in respect of Section 122(2) (the basic award) where the tribunal has to ask whether it is just and equitable to reduce the amount of the award to any extent. It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award; but it does not have to do so.”
So, in light of the foregoing, although the relevant provisions have been amended since the decision of the Court of Appeal in Northern Ireland, in the case of G McFall & Company Ltd was decided, in most cases the same result will be achieved.
4.13 The amount of any reduction of the basic and/or compensatory award (see before) by a percentage on just and equitable grounds can be as much as 100%; but such a sizeable reduction, although legally possible, is ‘rare’/‘unusual’/‘exceptional’ (see Lemonious v The Church Commissioners [2013] UKEAT/0253/12); and if such a reduction is made by a tribunal, it must be justified by facts and reasons set out in the decision. In any event, the factors which help to establish a particular percentage should be, even if briefly, identified (see further Steen).
5.1 In relation to the issue of compensation, where a claimant has obtained income from a new job, following an unfair dismissal, the Employment Appeal Tribunal, in the case of Whelan v Richardson [1988] IRLR 144, summarised the approach to be taken by tribunals; albeit emphasising that tribunals had a discretion to do what was appropriate in individual cases:-
“(1) The assessment of loss must be judged on the basis of the facts as they appear at the date of assessment hearing (‘the assessment date’).
(2) Where the (claimant) has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate in the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate. Further, the Employment Appeal Tribunal will consider for how long the loss is likely to continue so as to assess future loss.
(3) The same principle applies where the (claimant) has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal. He will be compensated on the basis of full loss until the date in which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment. All figures will be based on net earnings.
(4) Where the (claimant) takes alternative employment on the basis it will be for a limited duration, he will not be precluded from claiming loss to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.
(5) As soon as the (claimant) obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases. It cannot be revived if he then loses that employment either through his own action or that of his now employer. Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment. The chain of causation has been broken.”
This guidance was described as helpful by the Court of Appeal in Dench v Flynn & Partners [1998] IRLR 653, although the Court considered that the obtaining of permanent employment at the same or a greater salary would not in all cases break the chain of causation. The Dench decision was applied in Cowen v Rentokil Initial Facilities Service (UK) Ltd [2008] AER (D) 70. Further, in a recent decision of the Employment Appeal Tribunal, in the case of Commercial Motors (Wales) Ltd v Hawley [2012] UKEAT/0636, the Employment Appeal Tribunal cited with approval the case of Dench and, in particular, the judgment of Beldam LJ, when he stated at Paragraph 19 of his judgment:-
“19 ... no doubt in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at a equivalent or higher level of salary or wage than the employee enjoyed when dismissed. But to regard such an event is always and in all case putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.
20 Although causation is primarily a question of fact the principle to be applied in deciding whether the connection between the cause, such as unfair dismissal and its consequences, is sufficient to find a legal claim to a loss of damage, is a question of law. The question for the tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss when she was consequently dismissed by her new employer with no right of compensation after a month or two in her new employment. To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat the effective cause that which is simply closest in time.”
In Salvesen Logistics Ltd v Tate [UKEAT/689/98], the Employment Appeal Tribunal made clear that the chain of causation will not be broken where it is clear from the outset that the employment would be on a temporary basis.
5.2 In relation to the issue of mitigation of loss, there is no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe v Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment. In the case of Wilding v British Telecommunications PLc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who is refused an offer of employment, has breached the duty to mitigate:-
“(a) The duty of the employee is to act as a reasonable person unaffected by the prospect of compensation from her employer.
(b) The onus is on the former employer as wrongdoer to show that the employee has failed to mitigate by unreasonably refusing the job offer.
(c) The test of reasonableness is an objective one based on the totality of the evidence.
(d) In applying that test, the circumstances in which the offer is made and refused, the attitude of the former employer, the way in which the employer had been treated, in all the surrounding circumstances, including the employee’s state of mind, should be taken into account.
(e) The tribunal must not be too stringent in expectations of the injured party (that is, the employee).
The guidance in set out in the Wilding case has been applied in a number of recent decisions by the Employment Appeal Tribunal; but each relate to their own particular facts (see further Harris v Tennis Together Ltd [2009] UKEAT/0358/08, Hibiscus Housing Association Ltd v Mackintosh [2009] UKEAT/0534/08, and Beijing Ton Ren Tang (UK) Ltd v Wang [2009] UKEAT/0024/09.”
The state of the labour market can be relevant in deciding whether an employee has made reasonable efforts to find a new job (see Korn Employment Tribunals Remedies, Paragraphs 13 – 28). It was held HG Bracey v Kes [1973] IRLR 210 that the duty of mitigation does not require the dismissed employee to take the first job that comes along, irrespective of pay and job prospects.
6.1 Insofar as relevant and material, Article 33 of the 1996 Order provides:-
“(1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.
(2) The statement may (subject to Article 34(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment.
(3) The statement shall contain particulars of —
(a) the names of the employer and employee,
(b) the date when the employment began, and
(c) the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).
(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement (or the instalment containing them) is given, of —
(a) the scale or rate of remuneration or the method of calculating remuneration,
...
(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),
(d) any terms and conditions relating to any of the following —
(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),
...
(f) the title of the job which the employee is employed to do or a brief description of the work for which he is employed,
...
(h) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer
... .”
6.2 Article 36 of the 1996 Order, insofar as relevant and material provides:-
“(1) If, after the material date, there is a change in any of the matters particulars of which are required by Articles 33 ... to be included or referred to in a statement under Article 33, the employer shall give to the employee a written statement containing particulars of the change.
...
(3) A statement under paragraph (1) shall be given at the earliest opportunity and, in any event, not later than —
(a) one month after the change in question, or
... .”
6.3 Article 27 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) provides, insofar as relevant and material:-
“(1) This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4 [this would include a claim of unfair dismissal].
...
(3) If in the case of proceedings to which this Article applies —
(a) the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order,
the tribunal shall, subject to paragraph (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.
(4) In paragraphs ... and (3) —
(a) references to the minimum amount are to an amount equal to two weeks' pay, and
(b) references to the higher amount are to an amount equal to four weeks' pay.
(5) The duty under paragraph ... or (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.”
It is therefore a freestanding claim and will not be made unless a claim under Schedule 4 has been upheld (see Scott-Davies v Redgate Medical Services [2006] UKEAT/0273).
6.4 Pursuant to Article 118 of the Employment Rights (Northern Ireland) Order 1996, an employee is entitled, where he has been continuously employed for two years or more but less than 12 years, to one week’s notice for each year of continuous employment; and an employee who has been employed for 12 years or more is entitled to not less that 12 weeks’ notice.
7.1 In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.
7.2 The respondent’s representative, in the course of his written submissions, accepted there had not been ‘strict’ compliance with the requirements of the statutory dismissal and disciplinary procedure and, in particular, that “the respondent’s letter of 5th of June 2013 did not precisely set out the misconduct which was alleged against the claimant”. Indeed, in the tribunal’s judgment, for the reasons set out previously, the letter, reading it in a non-technical way, failed completely to set out to the claimant, as required under the procedures, the claimant’s ‘alleged conduct or characteristics or other circumstances’, as required under Step 1 of the said procedures. It is not sufficient to merely refer to gross misconduct, ‘without more’. In particular, it did not set out, even in broad/headline terms, the nature of the allegations of misconduct against the claimant (see further YMCA Training v Stewart; Alexander and Hatherley v Brigden Enterprises). In the circumstances, the tribunal concluded the Step 1 requirement under the statutory procedure had not been complied with.
The tribunal further is not satisfied the respondent complied with the requirements of Step 2 of the statutory procedure. Such a meeting must not take place unless “the employer has informed the employee what the basis was for including in the statement under Step 1 the ground or grounds given in it and the employer has had a reasonable opportunity to consider his response to that information”. Mr Robinson did not give the claimant such an opportunity during the said meeting. The first time the claimant was made aware of the nature of the allegations against him in any detail was during the course of the disciplinary hearing. As found by the tribunal, the claimant was given no opportunity to consult relevant records/ timesheets before he was required to respond to the allegations made by Mr Robinson about his conduct. Indeed, as set out in the dismissal letter of 25 June 2013, the claimant, to the knowledge of Mr Robinson, had indicated he would be unable to provide answers in response to the allegations put to him. Despite this no further opportunity was given by the respondent to do so before the letter of 25 June 2013 in which he was dismissed, was sent to the claimant. In the judgment of the tribunal, this was not a disciplinary meeting, as envisaged under the statutory procedures; but rather was, at best, some form of initial investigatory meeting prior to deciding whether to hold a disciplinary meeting under the statutory procedures. Further, Mr Robinson referred and relied upon a document at the disciplinary meeting and the letter of dismissal, in relation to the allegation of falsification of timesheet records, which was in error and related to week ending 30 April 2013 and not 28 May 2013. Mr Robinson failed properly or at all to put to the claimant during the course of the meeting, albeit clearly relied upon by him when dismissing the claimant, matters which he said in his letter had been said to him by other members of staff about these allegations.
Further, on the facts as found by the tribunal, the claimant was not granted an appeal of the decision to dismiss him, despite his written request for such an appeal. The tribunal therefore found that Step 3 of the statutory procedures had also not been complied with by the respondent.
7.3 Given the failures, as set out above, to comply with the requirements under Step 1, 2 and 3 of the statutory procedures the dismissal of the claimant was automatically unfair, pursuant to Article 130A(1) of the 1996 Order, when he was dismissed, without notice, on 25 June 2013.
Having found the dismissal to be automatically unfair, and given that it was apparent that the claimant, if he had been given time, would have been able to produce relevant evidence/records and timesheets to show the allegations of misconduct were not as alleged by the respondent. In particular, if he had been given the time he would have been able to produce evidence, as found by the tribunal, to show that he had been working and had not been playing golf on 24 May 2013 and 28 May 2013 and also that he had an arrangement with Pat Parker to allow him to set off certain call-out fees from the times that he had left work early. In these circumstances, the tribunal was unable to conclude the claimant would still have been dismissed, if the statutory procedures had been complied with. To have done so would have required the tribunal to engage in speculation, unsupported by any relevant evidence. Indeed, the evidence produced by the claimant, as found by the tribunal, following his dismissal, was supportive of the claimant’s denial of the allegations of misconduct made against him. The tribunal therefore determined there could be no Polkey deduction, in relation to any award of compensation.
7.4 If it had been necessary to do so, the tribunal, in the alternative, would also have found the claimant to have been unfairly dismissed (‘ordinary’ unfair dismissal), pursuant to Article 130 of the 1996 Order. In doing so, the tribunal would have relied, in particular, on the failures outlined in the previous sub-paragraphs in relation to the failures of compliance with the statutory procedures, which would have similar application in relation to a finding of ordinary unfair dismissal. In the circumstances, given the finding of automatic unfair dismissal, it was not necessary for the tribunal to set out its findings on a claim of automatic unfair dismissal in any greater detail, for the purposes of this decision (see Metrobus v Cooke [UKEAT/0490/06).
7.5 Given the failure by the respondent to comply with the three step statutory procedure, which applied to the claimant’s claim of unfair dismissal, and the non-completion of the statutory procedure was wholly or mainly attributable to the failure of the respondent to comply with the requirements of the said procedure, it was necessary for the tribunal to consider the relevant uplift, if any, to be made to the compensatory award made to the claimant, pursuant to Article 17 of the 2003 Order. As stated previously, the tribunal has a wide discretion. It was not satisfied there were any exceptional circumstances established by the respondent to show that it would be unjust or inequitable to make an uplift to the said award. In essence, there was a complete failure to follow the procedures, with each failure compounding the subsequent failures. In this particular case, if there had been an appeal, for example, the impact of the earlier failures would have been, potentially, considerably reduced. Although the statutory dismissal procedures are long established, Mr Robinson admitted to ignorance of them – which, in the circumstances, cannot be excused. The statutory procedures are to ensure a minimum standard of procedural fairness in connection with the dismissal. This the respondent failed to provide with serious consequences for the claimant, even though Mr Robinson knew the claimant needed more time to challenge the allegations made against him. These included the serious charge of falsification of timesheets. Despite the serious charge, the ‘wrong’ timesheet was provided to the claimant and after the decision to dismiss had been made. In light of the foregoing, the tribunal concluded, in light of such a serious failure by the respondent, that an uplift of 50% was appropriate in the circumstances, taking into account, in particular, the culpability of the respondent (see further the dicta referred to at Paragraph 3.5 of this decision).
7.6 The tribunal was satisfied the claimant had made reasonable efforts to obtain other employment following his dismissal, although unsuccessful (see further Paragraph 5.2 of this decision). He therefore had not failed to mitigate his loss. However, given the respondent went into administration on 30 July 2014, as set out in the records available at Companies House, the tribunal is satisfied the claimant’s claim for any ongoing financial loss cannot continue beyond that date, as he no longer would have remained in employment with the respondent and the relevant chain of causation would therefore have been broken.
7.7 The claimant was dismissed summarily without notice. In light of the tribunal’s finding that the claimant was unfairly dismissed, the claimant is entitled to notice pay of 12 weeks, pursuant to the terms of his contract of employment, which was not paid to him.
7.8 The claimant, following his dismissal, has been in receipt of statutory benefits in the Republic of Ireland In the sum of approximately £102.00 per week. The tribunal is not satisfied that such benefits require to be taken into account under the Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996; but are required to be taken into account in the calculation of the claimant’s loss of earnings following his dismissal. It was expected such benefits would continue to be paid, given the claimant’s ongoing difficulties in obtaining employment, and would therefore have been paid up to the date of the respondent going into administration on 30 July 2014.
7.9 The tribunal having found the claimant was unfairly dismissed, which is a claim within the jurisdiction listed in Schedule 4 of the 2003 Order, and further the respondent having failed to provide a statement of the particulars of changes to his statement of particulars of employment signed in 2002, the tribunal was satisfied there had been a breach of duty under Article 36(1) of the 1996 Order. The tribunal was not satisfied there were any exceptional circumstances which would make an award for such a breach to be unjust or inequitable. There had been considerable changes to the claimant’s role since 2002, which should have been reflected in an amended statement. In the circumstances, the tribunal was satisfied such an award should be limited to ‘two weeks’ pay’, (see Paragraph 6.3 of this decision); albeit it recognised if there had been such an amended statement some of the difficulties which arose in this matter might have been avoided.
7.10 In relation to the issue of contributory fault by the claimant, the tribunal had to consider the actions of the claimant alone (see further Paragraph 4.10 of this decision). Not without some hesitation, the tribunal decided the claimant had not contributed to his dismissal. The tribunal has no doubt the claimant, on occasion, did leave work early to play golf; but he did so on foot of the somewhat unusual set of arrangements operated between the claimant and Pat Parker, which had been allowed to continue for many years, without any interference by Mr Robinson. If there had not been such arrangements, the tribunal would have considered making a small reduction in the award of compensation to the claimant.
8.1 The tribunal therefore makes the following assessment of the sums to be awarded to the claimant by the respondent, as set out in the following sub-paragraphs.
8.2 Compensation for unfair dismissal –
(a) Basic Award
23.5 x £450.00 (subject to statutory cap) £10,575.00
(b) Compensatory Award
(i) Loss of earnings from
17 September 2013 to 29 April 2014
at £400.00 per week (£400.00 x 32)
(to include average call-out and standby fees) £12,800.00
LESS
Sums received by way of benefits in
the Republic of Ireland for the said period
at £102.00 per week (32 x £102.00) £ 3,264.00
£ 9,536.00
(ii) Loss of future earnings from
30 April 2014 to 30 July 2014
at £298.00 per week,
(to include average call-out and standby fees)
taking account of the continuing benefits paid
in the Republic of Ireland -
13 x £298.00) £ 3,874.00
(iii) Loss of statutory rights £ 400.00
(iv) Award for failure to provide a
statement of particulars of changes
to statement of particulars of employment
(2 x £450.00) £ 900.00
£14,710.00
50% uplift £ 7,355.00
£22,065.00
Total Monetary Award (a) + (b) £32,640.00
8.3 8 days’ holiday pay (8 x £50.43) £ 403.44
8.4 Notice pay (12 x £353.07 net) £ 4,236.84
9.1 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
9.2 The Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, apply to this decision. Your attention is drawn to the attached recoupment notice which forms part of this decision.
Employment Judge
Date and place of hearing: 29 – 30 April 2014; and
1 May 2014, Belfast
Date decision recorded in register and issued to parties:
