Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1648/14

 

 

 

CLAIMANT:                      Aidan Keenan

 

 

RESPONDENT:                Walter Watson Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that:-

 

(1)      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 £8,079.76;

 

(2)      further, the tribunal finds the claimant’s claim that the respondent made unauthorised deductions from his wages well-founded and so declares; and orders the respondent to pay to the claimant the sum of £958.96.

 

Constitution of Tribunal:

Employment Judge:                   Employment Judge Drennan QC

Members:                                  Mr A Barron

                                                  Mr I Foster

 

Appearances:

The claimant was represented by Ms C Maguire, Solicitor, of Law Centre (NI).

The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Michael F Curran, Solicitor.

 

Reasons

 

1.1     The claimant presented a claim to the tribunal on 22 August 2014, in which he made a claim of unfair constructive dismissal and/or a claim for notice pay and/or loss of holiday pay and/or unauthorised deduction of wages.  The respondent presented a response to the claimant’s claims on 30 September 2014, in which it denied liability for the claimant’s claims. 

 

          Following discussion between the representatives a schedule of loss was agreed between them, subject to liability, for the purposes of the determination of these claims by the tribunal.  It will be necessary to refer to this agreed schedule of loss in greater detail elsewhere in this decision.  It was agreed the claimant was paid all holiday pay to which he was entitled.

 

1.2     The tribunal heard oral evidence from the claimant and David Barr, Trevor Scott and Gordon Singer.  Both the claimant and the respondent had prepared and exchanged witness statements from other persons; which were read by the tribunal, prior to the commencement of these proceedings in accordance with the normal case-management directions/orders made by the tribunal at a Case Management Discussion on 24 October 2014, as set out in the Record of Proceedings dated 27 October 2014.  The representatives agreed, during the course of this hearing, that these further witness statements were to be withdrawn and/or were not to be relied upon by the tribunal in determining the issues in these proceedings.  However, in relation to the witness statement of Leslie Clarke, which had been prepared and exchanged on behalf of the respondent, the tribunal was informed by the respondent’s representative that he was ill and unable to attend; it was agreed and the tribunal so ordered, that this witness statement of Leslie Clarke would be admitted in evidence as hearsay evidence, subject to the warning by the tribunal, which was properly acknowledged by the respondent’s representative, as to the weight, if any, which could be attached to the evidence contained in the witness statement, admitted as aforesaid, and where Mr Clarke was not able to be                   cross-examined by the claimant’s representative.

 

1.3     At the commencement of the hearing, the claimant’s representative confirmed that, if the tribunal found the claimant’s dismissal was unfair, the claimant wished to obtain, by way of remedy, an award of compensation; and she was not therefore seeking an Order for Reinstatement and/or Re-engagement.

 

2.1     Having considered the evidence given to the tribunal by the parties, as set out above, the documents in the ‘trial bundle’ to which the tribunal was referred during the course of this hearing, together with the oral and/or written submissions made by the representatives of the parties.  At the conclusion of the hearing, the tribunal made the following findings of fact, insofar as relevant and necessary for the determination of the claimant’s said claims, as set out in the following                   sub-paragraphs.

 

2.2     The claimant, who was born on 5 February 1978, was employed by the respondent as a reinforcing operative from 16 April 2012 until his employment terminated on or about 10 June 2014.  At the date he was earning £333.20 (inclusive of bonus) (gross) per week. £275.84 (net) per week.

 

2.3     In his role as a reinforcing operative, the claimant was required to operate a variety of steel-cutting machines and, on occasion, he was also required, inter alia, to operate magnetic and overhead cranes. 

 

2.4     During 2012 and into early 2013, the claimant worked very well; but, from late Summer 2013, reports were made by his supervisors and line managers of reduced performance and an unwillingness to work overtime or to co-operate with his supervisors and he displayed an obstructive and difficult manner towards them, coupled with a regular mood swings and some irrational behaviour.  In early January 2014, he reported to the respondent he was suffering from depression and he was allowed to have counselling during working hours.  The claimant had a period off work in late March 2014, due to an injury to his hand outside of work, which required him to be given, upon his return, work to accommodate this injury.  However, following his return, the claimant continued to display a lack of enthusiasm for his work and reduced performance in contrast, as referred to above, to the early months of his employment.  He was offered overtime on numerous occasions but he declined.  His supervisors became increasingly concerned about these behavioural and performance issues.

 

2.5     On 15 April 2014, the claimant was found by a senior manager, Leslie Clarke, in the car park of the factory, and not at his workstation.  When he was asked by Mr Clarke why he was absent from his workstation he replied:-

 

                    “To get a can of coke.”

 

He was reminded by Mr Clarke this was outside the time for the tea break and he was asked to return to his workstation; and, as a consequence, he was told there would be a meeting the next day about these matters.  Mr Clarke noted the claimant appeared distant, unresponsive and passive at the time.  The claimant then went to his supervisor and informed him he was too ill to work and he had to go home, which he then did.  The tribunal does not accept that Mr Clarke, as the claimant alleged, had ‘it in for him’.  Indeed, the tribunal believes that at all times Mr Clarke had attempted to help the claimant and facilitate him in his personal difficulties, as outlined above. 

 

2.6     In view of the events of 15 April 2014 and the performance and behavioural issues exhibited by the claimant in the previous months, it was decided by David Barr, the managing director of the respondent, in consultation with other senior managers, that upon the claimant’s return to work, the claimant would be required to undergo tests under the respondent’s drug and alcohol misuse policy and procedure.  Following the claimant’s return to work on 16 April 2014 relevant tests were carried out by Randox (‘Randox’) under the said policy and with the consent of the claimant.  Indeed, it was not disputed by the claimant that the respondent was entitled, in the circumstances, to carry out the said tests and that they were carried out by Randox in the appropriate manner under the respondent’s said policy and procedure.  After the test was completed, the claimant was told he was suspended on full pay pending the return of the results of the test.  The tribunal is satisfied the claimant was fully aware why the respondent had decided to carry out the tests and, in particular, of the concerns of the respondent’s managers and supervisors, both for his own safety and those of the workforce due to his said behavioural and performance issues.  Indeed, the claimant admitted, at the time of the test, as set out in a relevant diary entry, he was on strong medication, as listed by Randox, mainly for depression, anxiety, sleeping tablets and painkillers and he also stated:-

 

                    “He was not currently in the right state of mind to operate machinery.”

 

          It was known by Mr Barr that the claimant was going on holiday the following week and it was agreed, in the circumstances, to meet again with him on 29 April 2014 to discuss the results of the tests.  In the event, the meeting was not able to take place until 1 May 2014.

 

2.7     Insofar as relevant and material to the determination of the issues in these proceedings, it is provided, under the respondent’s drug and alcohol misuse policy and procedure, inter alia, as follows:-

 

                    “Policy Rationale

 

Alcohol and substance misuse result in costs to the employer and potential risks to employees, customers, and members of the public and can results in accidents, poor work performance and acts of misconduct.  It is in the interests of Walter Watson Ltd that employees suffering from illness arising from alcohol dependence and substance misuse are identified and encouraged to seek specialist help as soon as possible.  Misuse of alcohol or drugs does not exonerate an individual from the results of their actions or from disciplinary action. 

 

Walter Watson Ltd aims to:

 

Encourage a safer and healthier working environment for our employees.

 

          Ensure a safer and healthier working environment for our employees.

 

          Ensure that everyone is aware of the acceptable standards.

 

Ensure that anyone suspected of being under the influence of alcohol or drugs is treated in a fair and consistent manner.

 

Ensure that anyone who advises their line manager or nominee that they have a drug or alcohol related problem is given the necessary support to resolve their problems.

 

                    Policy Statement

 

Walter Watson employees are expected to behave responsibly at all times and to safeguard their own health & safety and that of those around them.  It is the responsibility of members of staff to ensure that their performance at work is not affected by alcohol consumption or substance misuse.  Employees working with machinery or driving in the course of their work should not consume alcohol in the course of the working day or be under the influence of alcohol from the night before and should ensure that their performance is not impaired by alcohol consumed prior to starting work.

 

Principles

 

The procedure below applies to employees who are identified by a medical practitioner as suffering from an illness as a result of their dependence on alcohol or substance misuse which is affecting their conduct or work performance.

 

The disciplinary procedure will apply in cases where an individual whose conduct or work performance is adversely affected by excessive alcohol intake or substance misuse and he is shown not be suffering from alcohol dependence or substance addiction.

 

Where an employee’s alcohol dependence and/or substance addiction becomes evident in the course of disciplinary procedures, consideration will be given as to whether it is appropriate to continue with the disciplinary process.

 

In the event that an employee is known to suffer from illness arising from alcohol dependence and/or substance misuse commits a disciplinary offence, account will be taken of the individual’s co-operation and treatment, and any other mitigating factors, when deciding what disciplinary action, if any should be taken.

 

...

 

Screening Programme : Testing for Drugs and Alcohol

 

...

 

Results of tests for drugs and/or alcohol are confidential and are reported to the general manager and those tested.

 

If an employee tests positive for drugs and/or alcohol, arrangements will be made to remove the individual from the workplace (to ensure they do not harm themselves or others).  The employee will be placed on garden leave with pay pending further investigation. [tribunal’s emphasis]  Thereafter the remedy of this situation will follow the company’s disciplinary procedure and may result in the employee’s dismissal.

 

Where appropriate Walter Watson Ltd reserves the right to carry out                follow-up alcohol and drug screening for employees who have been receiving support or have been absent from work because of an alcohol or drug related problem.  Where the presence of a controlled substance has been detected through testing Walter Watson Ltd also reserves the right to carry out follow-up alcohol and drug screening.

 

... .”

 

          It was not disputed this policy and procedure was an express or, in the alternative, an implied term of the claimant’s contract of employment with the respondent

 

2.8     On 17 April 2014, the preliminary results were returned by Randox as ‘presumptive positive’ for two named drugs.  Randox were asked to carry out further laboratory analysis of the test results and, on 30 April 2014, the detailed analysis of the test results were returned by Randox, confirming the initial findings. 

 

2.9     In an e-mail dated 29 April 2014, the claimant wrote to Mr Barr in which he stated, inter alia:-

 

“I’m getting in touch to request some clarity ahead of our meeting on Thursday.  As you know, I was sent home from work on Wednesday 16^th of April and was told that I would receive my full pay.  No explanation was given regarding why I would not come to work to carry out my job as normal.

 

I arrived for work on Monday the 28^th of April following my holidays as I was slightly unsure if it was the 28^th/29^th but was reminded by Trevor Scott that you were not ready for me as you were not there and that the meeting would go ahead for 29^th of April.  Trevor Scott subsequently telephoned me to advise that the meeting was postponed until the 1^st of May.

 

By the time we meet, I will have effectively have been suspended on full pay for two weeks with no proper explanation.  I find this situation extremely stressful due to further postponing.  To help me prepare for Thursday’s meeting, please urgently clarify:-

 

          1.       Why I’ve not been allowed to come into work from 16^th of April.

 

          2.       What the purpose of the meeting on Thursday is.

 

... .”

 

          Mr Barr replied by e-mail dated 30 April 2014 in which he stated:-

 

“I’m surprised at the content of your e-mail, with particular reference to the requirement for further clarity.  As you are fully aware, you had readily participated in a drugs and alcohol test on the 16^th of April 2014 brought about due to behavioural and performance issues raised by your line managers.  Your safety and that of your colleagues is of paramount importance to this company, therefore it is vital to have the full suite of test results completed and concluded prior to meeting with you.  This was explained fully to you at our last meeting.

 

The purpose of proposed meeting on 1^st of May is to share the test results received to date and discuss a way forward.

 

... .”

 

The tribunal accepts that this explanation by Mr Barr, in his e-mail, confirmed what the claimant had already been told at the time of the testing on 16 April 2014 and that he would have been in no doubt, not only for the reason of the test, but also what was to be discussed at the meeting on 1 May 2014. 

 

2.10    At the meeting on 1 May 2014, the claimant was told that the detailed drug analysis had been received from Randox and it confirmed a high level of certain drugs present in his system and that this was a concern to the respondent and that it would be necessary for the respondent to have the results analysed by a consultant, for which they would need access to his medical notes and records.  The claimant, as a result, then, immediately and properly, gave written permission for the results of the recent drug and alcohol tests carried out by Randox on 16 April 2014 to be analysed by a consultant from Independent Occupational Health in Belfast.  On 1 May 2014, Trevor Scott, the general manager of the respondent, sent the test result information from Randox, with the formal authority from the claimant and he asked the consultant at Independent Occupational Health for guidance as to the medical condition of the claimant and if he was capable of working with machines and in a busy working environment.  The claimant arrived back in the respondent’s office later on 1 May 2014 and asked for clarification of exactly what he had signed in the morning meeting.  He admitted that he had not slept the previous night and was all over the place at that meeting.  He stated that he was going to see his General Practitioner and asked if he could have a copy of the results.  However, he was told that he would not get a copy of the results, until it was reviewed by the respondent’s consultant.  The claimant was told that, if he could get copies of his medical notes, as set out in the form of authority, this would speed things up considerably.  The consultant on 6 May 2014 informed Mr Scott that what was declared by the claimant was in line with what appeared on the test results.  Mr Scott informed the consultant of the heavy industrial environment that the claimant worked in and, in an e-mail on 7 May 2014, Dr Jenkinson, the independent consultant, stated his concerns about the claimant working on these machines with this level of medication and he suggested an appointment for the claimant to see him.  In an e-mail dated 6 May 2014, the claimant had written to Mr Scott expressing various concerns about the process.  Mr Scott replied in an              e-mail in which he stated, inter alia:-

 

“We would ask you to get the information we require from your doctor as to the quantity and description of prescribed drugs you were taking at the time the company carried out the drug test on Wednesday 16^th of April 2014.  You have indicated that you were taking medication for different reasons at this time.  In order to progress this issue and to get an analysis of the drug test, it would be quicker for you to get this information rather than the company writing to your doctor. 

 

We will require this information before our meeting on Thursday, if possible ... .”

 

          In so writing, Mr Scott was very aware of the delays that regularly can occur in obtaining relevant records where the written authority has to be sent by the consultant to the General Practitioner and then the records have to be sent by the General Practitioner to the consultant on foot of the said authority. 

 

2.11    The claimant arrived for a further meeting on 8 May 2014.  Prior to the meeting he saw Walter Watson, the chairman of the respondent, talking to Mr Barr outside Trevor Scott’s office.  As the claimant went towards Mr Watson, the Chairman, said to him:-

 

“Aidan, your pay has been suspended as of yesterday.  You have had your two weeks, get that paperwork on that desk and until then no more stupid              e-mails.”

 

          Mr Watson then just turned his back on the claimant.  The claimant immediately left the office and was very upset by what had taken place.  The tribunal is satisfied that, despite the terms of the drugs policy and that it had been previously agreed that the claimant would be suspended on full pay, Mr Watson unilaterally and contrary to the terms of the policy and the said agreement, had decided that the claimant was no longer to receive full pay.  The tribunal is satisfied that both Mr Barr and Mr Scott were fully aware that the actions of Walter Watson were in breach of the policy and the said agreement; and therefore in breach of his contract of employment, but did not, despite their senior management positions, attempt, then or later, to intervene with Mr Watson and to ensure the claimant received the full pay to which he was entitled. 

 

2.12    On 9 May 2014, the claimant e-mailed Mr Scott stating:-

 

“I heard Walter’s annoyance to as he put it ‘stupid e-mails’ but it would take some time for even myself to collect all the data you say you require to move forward.  Could I please have a copy of the test results that you have of mine as I’m curious myself as to the results and suspended with no pay is a bit difficult.”                                                                 [tribunal’s emphasis] 

 

On 15 May 2014 the claimant arrived with his medical notes which were photocopied and were subsequently posted to the independent consultant, Dr Jenkinson, on 19 May 2014.  On 23 May 2014 an appointment was arranged for the claimant to attend the consultant on 4 June 2014.  In an e-mail from the claimant to Mr Scott on 27 May 2014, the claimant stated:-

 

          “ ... Medical Review

 

While I have no objection in principle to going to see a company doctor, I am very concerned about the lack of information that you have provided me with over the past five weeks.  Accordingly, can you please provide me with the following information:

 

          What is the purpose of the medical review?

 

What was the result of the drug and alcohol test that was done on 16^th of April 2014?

 

Does the medical review relate to any supposed behavioural or performance issues?  If so, what are these alleged issues?

 

Why am I still on suspension?

 

Can the company please pay my travel expenses for going to see this doctor?

 

 

                    Pay

 

As set out above, I have no idea why I have been suspended and am very worried about the length of time my suspension has lasted.

 

Further I do not believe you are entitled to suspend me without pay.  Please confirm that I will be reimbursed my pay for the last 2.5 weeks and that I will be paid going forward.                                              [tribunal’s emphasis]

 

My health

 

I previously had advised the company that I suffer from depression.  The company’s actions of the last two weeks have caused me great strain and exacerbated my depression.  I am in severe financial difficulties due to the loss of my pay.  [tribunal’s emphasis]  I’ve also been suffering extreme stress and anxiety waiting for information about the company’s intentions.  I feel it is totally unacceptable for the company to leave me in limbo in this manner. 

 

I appreciated that you have expected a telephone call from me but, due to the strain on my health, I felt it would be better to set out my views by e-mail in the first instance.

 

... .”

 

In an e-mail on 29 May 2014, Trevor Scott confirmed to the claimant about a change of time for the appointment with the consultant, Dr Jenkinson, on 4 June 2014 and that all travelling expenses incurred would be paid upon receipt.  However he did not respond to the various other detailed matters raised by the claimant in the e-mail of 27 May 2014. 

 

2.13    The claimant attended the appointment and on 4 June 2014, he sent an e-mail to Trevor Scott:-

 

                    “Trevor,

 

I’ve been told by Dr Jenkinson that he will be advising return to work as soon as possible so as to alleviate any problems/issues in regards to what predicaments this situation has left me in.  As I’ve been given the all-clear to work I request as I have done before that my pay be reinstated immediately and all unpaid suspension be reimbursed likewise.       [tribunal’s emphasis] 

 

I appreciate you may need to wait on the IOH report but I’ve been kept in the dark for too long and as stated before I am in financial difficulties.                                                                                              [tribunal’s emphasis] 

 

Please get in touch if you need me back as soon as tomorrow.

 

Please reply to this ASAP ... .”

 

2.14    Mr Scott did not reply to this e-mail.  On the afternoon of Friday 6 June 2014, both the claimant and the respondent received from the independent consultant, Dr Jenkinson, his report in relation to the claimant.

 

          The report from Dr Jenkinson, Consultant Occupational Health Specialist, stated as follows:-

 

                    “Background

 

I saw Aidan today for the purpose of preparing this report.  Prior to the examination I had received referral information.  I had also received a copy of drug and alcohol tests.  This indicated a positive test for drugs that can be prescribed and can also be drugs of abuse. 

 

Subsequent to receiving this information I received copies of some GP notes.  These were difficult to interpret as part of the page was blanked out.  However they do indicate that some medication was prescribed some time ago to be taken on an as required basis. 

 

Mr Keenan gave a history of medical symptoms compatible with the use of these medications on a required basis.  Therefore I believed that his positive drug test can be explained on this basis and is not an indication of drug abuse. 

 

I took the opportunity to review Mr Keenan’s health.  I have been asked to determine whether I believe he is fit for work or not.  Mr Keenan does report some stress-related symptoms.  Objective assessment of these indicate that they are at the very mild end of the spectrum seen in clinical practice.  Mental state assessment concurs with this assessment.  I discussed with him work factors.  He described to me difficulties with relationship within the workplace but no other specific concerns. 

 

He also reports some low back pain.  History has suggested mechanical low back pain which is very common in the general population.  Physical examination is satisfactory.

 

Opinion

 

The conclusion reached at the end of my assessment is that Mr Keenan is fit to resume his usual work without adjustment.  His drug and alcohol test is considered negative.  If you have any other specific enquiries please contact me.”

 

2.15    On Monday 9 June 2014, Mr Barr sent an e-mail at 8.41 am to Dr Jenkinson, as he decided that he required further clarification from Dr Jenkinson in relation to the findings in his said report.  Despite the fact that Mr Barr was fully aware that the claimant had also received a copy of Dr Jenkinson’s report, neither he nor Mr Scott sent an e-mail to the claimant, replying to his e-mail of 4 June 2014 and explaining to him what was happening and, in particular, that it had been decided to seek further clarification from Dr Jenkinson about the contents of his report.  Both Mr Scott and Mr Barr were fully aware that the claimant wished to return to work and, in particular, that he was still suspended without any pay, following the instruction of Mr Watson referred to previously. 

 

          In his e-mail dated 9 June 2014, Mr Barr wrote to Dr Jenkinson, in the following terms:-

 

“Our business involves the processing of steel reinforcement with the use of heavy plant and machinery, we have concerns with Mr Keenan’s condition to be working in this environment, our principle concern would be for his own safety and also for that of his work colleagues. 

 

The displays of irrational behaviour and aggressive attitude towards his fellow colleagues had prompted us to carry out the drugs test in the first instance, our only way to safeguard Mr Keenan’s safety was to suspend him from the factory. 

 

Going back to the test results attached.

 

·       Does the level of drugs concentration recorded in Mr Keenan’s system correlate to the prescribed level of dosage from his prescription medication.  Randox do not consider the level of drugs in the system to be a negative result.

 

·       Would this level of medication have impaired his ability to work safely in this industrial environment.

 

·       Should Mr Keenan have advised the company that he was consuming this level of medication prior to being tested.

 

·       Would the drugs administered have accounted for his aggressive and irrational attitude.

 

·       On what grounds do you advise that Mr Keenan ‘is fit to resume work without adjustment, what level of surety do we have that Mr Keenan will not revert back to his previous mindset beyond the snapshot of behaviour that was witnessed during your assessment. 

 

At this point in time we are not comfortable in reinstating Mr Keenan to the industrial environment without further explanation of the above, without any further in-depth analysis of his mindset, it is clear that his addiction to drinking coca-cola and the inability to have a night’s sleep remains as physical problems for Mr Keenan to overcome.

 

I look forward to your response.

 

... .”

 

          In reply, dated 12 June 2014, Dr Jenkinson reported:-

 

“Thank you for your e-mail dated 9^th of June 2014.  I am aware of the type of work that you do.  I have worked as an occupational physician in industry for over 25 years.  I note your description of Mr Keenan’s behaviour in the workplace and the test for drugs and alcohol. 

 

I have reviewed as medical referee officer the information regarding this man’s drug and alcohol test.  I note that you do indicate quite correctly that the laboratory has informed you that the results are positive for X and Y (report named the particular drugs).  However Mr Keenan declared this medication to the laboratory and has confirmed that these were prescription medicines.  Mr Keenan has produced evidence from his GP that these medications were prescribed.  This means, in my opinion, that the positive tests from the laboratory does not indicate drug abuse.  It is possible that these medications taken together could impair reaction time slightly but it is unlikely unless taken in very high doses to lead to significant risk in the workplace.  This is also more likely to happen at the commencement of treatment with these medications.  I note that Mr Keenan did advise through the laboratory that he was consuming this medication prior to the test.  These drugs would not normally lead to aggressive and irrational attitude but more likely to be sedating though if taken habitually these features could be present on withdrawal.

 

I have advised that I have consider Mr Keenan fit to continue his usual work without adjustment.  This is based on my clinical assessment.  It is based on the balance of probabilities as any Occupational Physician in this situation will use this as the level of evidence.  It is still possible that he is not considered capable in a general sense to undertake this work.  Capability [tribunal’s emphasis] cannot be proven during a 30 minute medical consultation but has to be proven by observation by a supervisor throughout the working week.  I note that you are not comfortable to allow Mr Keenan to return to work.  Based on the evidence available to me I’m not able to guide you further in this respect. 

 

... .”

 

2.16    On Tuesday 10 June 2014, the claimant, in the absence of any response to him from the respondent and, in particular, Mr Scott and/or Mr Barr, despite his recent e-mails, decided that he could wait no longer.  For him, this failure to respond to him, in circumstances where he knew the respondent had had the medical report from Dr Jenkinson on 6 June 2014 stating that he was fit to work, was the last straw; and, in particular, in circumstances where he continued to be suspended with no pay and was in serious financial difficulties, as he had stated in his recent               e-mails to the respondent, which had not been replied to.  In the circumstances, the claimant felt that he had no alternative but to write to the respondent on 10 June 2014 resigning with immediate effect.  In his letter dated 10 June 2014, the claimant stated:-

 

“I’m writing to resign with immediate effect.  I feel that the company’s treatment of me has left me with no alternative but to resign.  The reasons for my resignation are as follows:-

 

1.       I’ve been excluded from work since 16^th of April without any clarification as to the reason for such exclusion.  As the exclusion occurred at the time I was subjected to a drug and alcohol test I assume that I was suspected of some wrongdoing in respect of drug or alcohol consumption.  However, I have never been told what (if anything) I’m suspected of having done save for a vague reference to ‘performance and behavioural issues’ in an e-mail from David Barr on 30^th of April.

 

2.       Since 16^th of May I have not received any pay.  I have not been given any reason for my pay stopping and my requests for reinstatement of my pay have been ignored.  I assume that the pay stoppage was connected to the drug and alcohol test and despite the severe financial hardship I was enduring I decided to await the outcome of the Occupational Health Assessment.  I knew that the assessment would vindicate me and believed that I would be returned to work immediately after the assessment.  I also believed that I would be reimbursed all outstanding wages.  This has not happened and you have completely ignored my    e-mail of 4^th of June asking for me to be allowed to return to work and for reimbursement of my wages. 

 

3.       I believe that my name has been tarnished within the company and that employees believe that I have been guilty of taking drugs.  I have received several comments from employees that show that they know I had been tested and that I was excluded from work.  I believe that this is a serious breach of confidentiality by the company. 

         

I believe that the company’s failure to pay me is a fundamental breach of my contract of employment.  I believe that the exclusion from work, the refusal to allow me to return, the breach of confidentiality and the failure to reply to my e-mails have totally destroyed all trust and confidence in the employment relationship.  I cannot continue to work for the company. 

 

... .”

 

The claimant did not send his e-mail until close of business at 5.00 pm on 10 June 2014, in the hope that he would have heard something from the respondent.  In the absence of same, he felt he had no option but to send the letter.  It was apparent, from the evidence of  the claimant, if he had received a reply, at some time between 6 June 2014 and close of business on 10 June 2014 from the respondent, giving some form of explanation for the matters raised by him in his e-mail of 4 June 2014 and some expectation of an early return to work but also, in particular, an early restoration of pay, that the claimant would probably have held off sending the letter of resignation.  It was further apparent from his evidence that the absence of pay was causing the claimant real distress, upset but also serious financial hardship and that, in the absence of any hope of a return to work from the respondent, he felt he had no option but to resign, so that he could take relevant steps to ‘sign on’ at the local Jobs Centre, as a matter of urgency to alleviate his financial difficulties. 

 

2.17    The respondent did not reply to the claimant’s letter of resignation of 10 June 2014; but it merely sent to the claimant on 16 June 2014, with his P45, a payment of £716.81, which included, subject to relevant deductions, payment for outstanding holiday pay but also, significantly in the opinion of the tribunal, a payment of £420.24 for statutory sick pay.  The claimant had no idea what was the basis for the payment of the statutory sick pay, as he had not been sick during any time of his suspension.  Indeed, as recognised in evidence by Mr Barr and Mr Scott, the payment of statutory sick pay was not in accordance with the respondent’s sick pay policy and procedures or the relevant legislative provisions.  Indeed, neither Mr Scott nor Mr Barr were able to properly explain how such a payment came to be made to the claimant.  Both recognised that the payment of the said statutory sick pay in the sum of £420.24 was considerably less than he would have been entitled to if he had been paid his full pay from 16 May 2014 to the date of his resignation.  Both Mr Barr and Mr Scott sought to suggest, in evidence, that the payment of the statutory sick pay was some form of error but were not able to clarify the precise nature of the error, how it came about, when it was discovered and why it was never remedied.  The tribunal, in the absence of any evidence from Walter Watson, came to the conclusion that, following Mr Watson’s instruction that the claimant was not to be paid his full pay, despite the terms of the policy and the agreement made with the claimant when he was suspended, the payment of the statutory sick pay was some form of misguided/cynical attempt by the respondent ‘to cover up/try to get round’ the failure to pay the claimant, on the instructions of Walter Watson, his full pay during the full period of his suspension. 

 

2.18    The tribunal was satisfied that at no time was there any breach of confidentiality by the respondent, as alleged by the claimant in his letter of resignation and that this complaint of breach of confidentiality was based on some hearsay/second hand/gossip, for which there was no proper evidential basis. 

 

2.19    The claimant, following his resignation, obtained relevant statutory benefits.  The tribunal is satisfied that the claimant made various efforts to find alternative work, albeit without any success until, on 8 September 2014, he was able to obtain work with Industrial Temps (a recruitment agency), as a temporary agency worker, as a production operative, with Nitronica.  As a temporary agency worker, the claimant, as appears elsewhere in this decision, received reduced earning from the earnings he was receiving when he was working for the respondent.  Unfortunately, this temporary agency work ceased prior to the commencement of the hearing in this matter; but the claimant remains ‘on the books’ of Industrial Temps and he is hopeful that he will obtain further temporary agency work with Industrial Temps and, in due course, he will be able to obtain permanent employment at a similar level of earnings to that which he enjoyed with the respondent. 

 

2.20    The respondent has a detailed disciplinary policy and procedure.  It is of interest to note that, under that policy, it is expressly provided that there can be suspension with pay [tribunal’s emphasis] but this is only a temporary measure to assist in the clarification of facts and collation of details and is not to be regarded as a disciplinary action or penalty of any kind.  The disciplinary procedure provides for various stages, depending on the conduct to be considered and also provides for an appeal procedure.  There is no specific procedure for a dismissal on the grounds of ill-health but the tribunal is satisfied, on the evidence of Mr Barr and Mr Scott, that the disciplinary procedure would be adopted as appropriate to deal with such a dismissal, including the ability for managers to obtain guidance, advice and ongoing support through its Human Resources and Occupational Health Services, as referred to in the sickness absence procedures. 

 

2.21    In connection with these proceedings but, as accepted by the respondent’s representative, only in relation to any issue of remedy, which the tribunal would require to consider if it determined that the respondent had unfairly constructively dismissed the claimant, the respondent obtained a report on 12 December 2014 from Dr S T Maze, Occupational Physician and Medical Review Officer.  This report was requested by the respondent on 18 November 2014 but was not provided until 12 December 2014.  Dr Maze did not carry out any consultation with the claimant but his opinion was based on a review of the documents supplied to him.  He considered that these were adequate to form an objective and defensible opinion and there was therefore no necessity for him to meet or examine the claimant.  This report was admitted in evidence by the respondent without formal proof and without objection by the claimant’s representative.  However, it was apparent from her submissions the claimant’s representative, although she had not objected to the report being admitted in evidence without formal proof, she did not accept the conclusions in the said report; but fairly and properly she acknowledged that, given that Dr Maze was not the subject of any cross-examination, it would be a matter for the tribunal, in the circumstances, to determine, in light of the representatives’ submissions, what conclusions, if any, it should reach in relation to this report and/or its relevance, if any, to any determination by the tribunal of the remedy to which the claimant was entitled upon any finding by the tribunal of unfair dismissal. 

 

          In his report, Dr Maze confirmed that the documents available for the preparation of this opinion were:-

 

                    laboratory report from Randox;

 

                    chain of custody form;

 

                    medical notes provided to the employer by the claimant;

 

                    extract from GP notes provided to the employer; and

 

                    the drugs and alcohol misuse policy and procedure of the respondent.

 

          Having referred to the policy he noted that the claimant worked with and around heavy industrial machinery in a steel fabrication work and that his duties included the driving of overhead cranes from a cab aloft which was reached by ladder from the ground and that he also drove forklift trucks.  He stated, inter alia, in his report:-

 

“I understand this sample was requested because of the donor’s erratic behaviour on that day gave rise to a reasonable suspicion of intoxication.  An unannounced test was carried out by a third party provider.  This comprises a calibrated breathalyser breath sample and a urine sample collection which was processed using the full chain of custody procedure.  The employee gave consent to testing and this is recorded on the chain of custody form completed by the collecting agency and signed by both the collector and the donor.  An analysis of that sample indicates the presence of substances prohibited by the client’s policy.

 

I was asked to medically review this employee’s positive laboratory report and the information provided by the employee about his medical history.  I’ve been asked to comment on the following points.

 

Whether the level of medication in the donor’s system was likely to have impaired his ability to work safely with heavy machinery and cranes.

 

Whether the substances detected are consistent with the prescribed medications recorded in the donor’s medical notes.

 

Whether the levels detected in the donor’s urine are consistent with what would be expected from the normal dosage of the prescribed drugs.

 

Whether the levels detected might be conducive to causing mood  swings and erratic behaviour.

 

Whether it was fair and reasonable to suspend the employee from the factory floor pending further investigations on the basis of both the science of erratic behaviour and the findings of the test results.

 

Following detailed analysis in relation to the analysis results obtained by Randox and the prescribed medication and consideration of the prescribed medications and relevant medical conditions as disclosed on the redacted medical notes, Dr Maze reached the following opinion:-

 

“Whether the level of medication in the donor’s system was likely to have impaired his ability to work safely with heavy machinery and cranes.

 

Yes, the level of medication in the donor’s system was likely to have impaired his ability to work safely with heavy machinery and cranes.  The same would apply to Group 2 driving (HGV and PCV)

 

Whether the substance detected are consistent with the prescribed medication recorded in the donor’s medical notes.

 

Yes, the substance detected are consistent with the prescribed medications recorded in the donor’s medical notes.

 

Whether the levels detected in the donor’s urine are consistent with what we would expect from the normal dosage of the prescribed drugs.

 

Yes, the levels detected in the donor’s urine are consistent with what we would expect from the normal dosage of the prescribed drugs.

 

Whether the levels detected might be conducive to causing mood swings and erratic behaviour.

 

Possible.  Although these are possible, as effects from the medications, particularly ‘C’ and perhaps ‘’ (named in the report), the more likely reason is his underlining anxiety with panic attacks.

 

Whether it was fair and reasonable to suspend the employee from the factory floor pending further investigations on the basis of both the signs of erratic behaviour and the findings of the test results.

 

This is a management decision, but I can state that this is normal practice across the United Kingdom.  It would be foolish to continue to expose such an individual to an environment where he would come to harm, or where he might increase the risk of harm to others.  The Health & Safety at Work Act imposes duties on employers and employees alike.  The Management Regulations give more detail.  I am of the opinion that an HSENI Inspector or a Court of Law are likely to consider this is not only reasonable, but necessary.  That is certainly what they would determine retrospectively had any harm arisen in the workplace.”

 

The tribunal was satisfied that in seeking this opinion from Dr Maze, Dr Maze was not informed by the respondent of the reports and conclusions of Dr Jenkinson referred to previously. 

 

2.22    The tribunal, having had regard to the European Convention on Human Rights and the claimant’s right to privacy and a fair trial, thereunder, did not consider it necessary and appropriate for the determination of the issues in this matter, and being aware this decision would be issued to the parties but also published on the tribunal’s website, to identify in the said medical reports of Dr Jenkinson and Dr Maze, the actual names of the prescribed drugs/medications referred to in the said reports (see before).

 

Relevant law

 

3.1     Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

          Article 126 of the 1996 Order:-

 

“(1)     An employee has the right not to be unfairly dismissed by his employer.”

 

Article 127 of the 1996 Order:-

 

“(1)     For the purposes of this Part an employee is dismissed by his employer if ...

 

(c)      The employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

 

3.2           As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

 

“In order for an employee to be able to claim constructive dismissal four conditions must be met –

 

(1)            There must be a breach of contract by the employer.  This may be either an actual breach or an anticipatory breach.

 

(2)            That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him leaving.  Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3)            He must leave in response to the breach and not for some unconnected reason.

 

(4)            He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

 

(See further Western Excavating  v  Sharp [1978] QB 761.)

 

3.3     It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd  v  Austin [1990] ICR 609). 

 

3.4     Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee.  This is often referred to as the Malik term (see Malik  v  Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin  v  Brighton & Hove CC [2007] IRLR 232).

 

3.5     As seen in Amnesty International  v  Ahmed [2009] ICR 1450 and Ministry of Justice  v  Sarfraz [UKEAT/0578/10] the phrases ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight.  As Lord Steyn stated in Malik, the term is there to protect ‘the employee’s interest in not being unfairly and improperly exploited’; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence – mere damage is not enough.

 

In Abbey National PLc  v  Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

 

“(30)   ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question.  Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

 

1.       What was the conduct of the employer that is complained of?

 

2.       Did the employer have reasonable and proper cause for that conduct?

 

If he did have such cause then that is an end of it.  The employee cannot claim that he has been constructively dismissed.

 

3.       Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

 

A failure to hold a proper appeal may be a significant breach of the implied term of trust and confidence.

 

3.6     The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature.  In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods  v  WM Car Services Peterborough [1981] IRLR 3) and the Malik decision.  In the more recent decision of Buckland  v  Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

 

“the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal”;

 

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating  v  Sharp [1978] ICR 221).  In the case of Tullett Prebon PLc  v  BGC Brokers LP [2011] IRLR 420, it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party. 

 

In the decision of the Court of Appeal in the case of Nottingham County Council  v  Meikle [2005] ICR 1.

 

Keane LJ held:-

 

“It has long been held by the EAT in Jones  v  Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee’s resignation.  The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job.  It suggested the test to be applied was whether the breach or breaches were the ‘effective cause’ of the resignation.  I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee’s motives.  It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case.  The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end.  It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation …  Once it is clear the employer was in fundamental breach ... the only question is whether [the employee] resigned in response to the conduct which constituted that breach.”

 

This dicta was followed by Elias J, as he then was, in the case of Abbeycars (West Horndon) Ltd  v  Ford [UKEAT/0472/07], when he stated:-

 

“On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal … “

 

                    and

 

“It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole list of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”

 

and also was followed in the case of Logan  v  Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

 

“ … It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason.”

 

This approach was again recently confirmed and followed by Langstaff P in the case of Wright  v  North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where there is more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in doing so he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1. 

 

In the ‘summary head note’, Langstaff P stated:-

 

“In order to determine a claim for constructive dismissal, a tribunal had applied to a test, referred to in Harvey, whether the contractual breach by the employer was ‘the effective’ cause ‘of an employee’s resignation’.  It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration.  The definite article ‘the’ is capable of being misleading.  The search is not for one cause which predominates over others, or which on its own would be sufficient but to ask (as Elias J put it in Abbey Cars  v  Ford) whether the repudiatory breach ‘played a part in the dismissal’.  This is required on first principles and by Court of Appeal authority (Meikle).  The tribunal here appeared to seek for ‘the’ cause rather than ‘a’ cause ... .”

 

In Adams  v  Charles Zub Associates Ltd [1978] IRLR 551 it was held a failure to pay an employee’s salary on the due date may amount to conduct which constitutes a breach going to the root of the contract or which shows the employer has no intention thereafter to honour the contract and thus, on the facts of a particular case, may justify the employee in resigning.

 

(See further Tolley’s Employment Handbook Paragraph 53.10 where it is stated:-

 

“An employer has no right to suspend an employee without pay unless this is expressly provided for in the contract.  A suspension without pay in the absence of a contractual right to do so may be a serious breach of contract enabling the employee to resign and claim constructive dismissal                (Morrison  v  ATGWU [1989] IRLR 361) ... .”

 

3.7     As has long been recognised (see further Paragraphs 480 – 481.01 in Harvey on Industrial Relations and Employment Law, Section D1), many constructive dismissal cases which arise from the undermining of trust and confidence, can involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant treating the resignation as a constructive dismissal (‘the last straw’ doctrine).  As was made clear in the case of London Borough of Waltham Forest  v  Omilaju [2005] IRLR 35, in order to result in a breach of the implied term of trust and confidence, a ‘final straw’ which is not itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term.  The Court of Appeal held in particular:-

 

“The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the implied term of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial.  Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the ‘final straw’ is entirely innocuous and not capable of contributing to that series of earlier acts.  The ‘final straw’, viewed in isolation, need not be unreasonable or blameworthy conduct.  …  Moreover an entirely innocuous act on the part of the employer cannot be a ‘final straw’, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer.  The test of whether the employee’s trust and confidence has been undermined is objective.”

 

(See further Pan  v  Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the guidance of Omilaju and found a return to work letter sent by the respondent to the claimant as ‘innocuous’, insofar as it was relied upon by the claimant, as the last straw entitling him to regard himself as discharged from further performance.)

 

4.1     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. 

 

4.2     In relation to the issue of mitigation of loss there was no dispute by the respondent that the claimant had taken all reasonable steps to mitigate his loss (see further Wilding  v  British Telecommunications PLc [2002] IRLR 524.

 

4.3     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% deduction 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.”

 

          In Garner  v  Grange Furnishings Ltd [1977] IRLR 206 there can still be a reduction for contributory fault, even if the dismissal is constructive.

 

4.4     Under Article 152 of the 1996 Order it is provided:-

 

“(1)     Where a tribunal makes an award of compensation for unfair dismissal under Article 146(4) or 151(3)(a) the award shall consist of —

 

(a)      a basic award (calculated in accordance with Articles 153 to 156,160 and 161), and

 

(b)      a compensatory award (calculated in accordance with Articles 157, 158, 158A, 160 and 161).”

 

No issue arose between the parties in relation to the calculation of any basic award under the said provisions of the 1996 Order (see later). 

 

In relation to Article 157(1) of the 1996 Order in relation to the assessment of the compensatory award, it is provided:-

 

“(1)     Subject to the provisions of this Article and Articles 158, 158A, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable [tribunal’s emphasis] in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.”

 

As stated in Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 2527:-

 

“The overriding duty imposed on the tribunal is to award what is just and equitable in the circumstances.  Consequently, even if the loss arising from the dismissal is substantial, the tribunal can still award no compensation if it would be just or equitable for the employee to receive it.  This was made clear by the judgment of Viscount Dilhorne in W Devis & Sons Ltd  v  Atkins [1977] 3 AER 40 ... he commented:-

 

‘Section 123(1) does not ... provide that regard should be had only to the loss resulting from the dismissal being unfair.  Regard must be had to that but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed.’.”

 

          On the facts of this particular case, there was considerable dispute between the parties in relation to the calculation to the compensatory award and, in particular, to what extent, if any, when assessing the compensatory award, could the tribunal have regard to whether the dismissal of the claimant might have occurred in any event and, if so, when.

 

4.5     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 in breach of procedures could not contend that, since the dismissal would have occurred any way, 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 their procedures would be futile.  However, although a tribunal might find the dismissal to be unfair, a tribunal, following Polkey, is able to reduce the employee’s compensation by a percentage to represent the chance the employee would still have been dismissed.  A Polkey reduction therefore requires an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.  It must be remembered, of course, that Polkey was not a constructive unfair dismissal but an unfair dismissal claim, following dismissal by the employer. 

 

4.6     Further, Article 130A(2) of the 1996 Order made a further change to the law of unfair dismissal and resulted, in certain circumstances, where there had been dismissal by the employer, 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 failure to follow procedures, other than the new statutory dismissal and disciplinary procedures.  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).

 

          However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the statutory disciplinary procedure, under the 1996 Order has been complied with.  Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt  v  CAFCASS [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 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal.  If the employers complied with the statutory disciplinary procedure (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 would be fair.  Thus, where the relevant statutory disciplinary procedure 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%.

 

          Arising from these changes in unfair dismissal law, as referred to above, in particular, in relation to ‘Polkey deductions’ there has been considerable relevant case law in relation to how a tribunal can assess whether or not dismissal would have occurred if a fair procedure had been followed.

 

          In particular, 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 a normal case, that would require the tribunal 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 in which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence when making the assessment.  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 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 reconstruct 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 of Dev  v  Lloyds TSB Assets Finance Division Ltd [2014] UKEAT/0281, Langstaff P emphasised the following:-

 

“(6)     The 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 as a 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.”

 

          Although, as indicated above, classically, this problem has arisen in circumstances where the employer has failed to act fairly because he has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining his job a fair dismissal after application in a relevant period of the procedural safeguards.  However, the tribunal was not satisfied that these principles, which can be derived from the case law referred to above, are restricted to cases where the dismissal has been by an employer.  In the tribunal’s judgment, they can also apply in cases of unfair constructive dismissal in appropriate circumstances.  In this context, it also has to be remembered that the amount of any compensatory award is always such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer (see Article 157(1) of the 1996 Order).  In this context, it is also necessary to note that, as far as the basic award is concerned, the tribunal does not have the same overriding power to award what is just and equitable - it must award a sum which is calculated by reference to age, years of service and the wage at the date of dismissal.  That sum may then be reduced insofar as the conduct of the employee before dismissal was such that would be just and equitable to reduce it; but, as indicated previously, in the present proceedings, there was no such issue of contributory conduct on the part of the claimant. 

 

4.7     Thus, the tribunal was satisfied that the guidance set out in the legal authorities referred to above, albeit on their facts dealing with a claim of unfair dismissal, following dismissal by an employer, could also apply to a claim of unfair constructive dismissal where same or similar issues arise; and it would be necessary for the tribunal, in assessing the compensatory award on a just and equitable basis, to assess a chance of what might have happened, as referred to in Software 2000 Ltd  v  Andrews and followed, with approval, in Brinks Ireland Ltd  v  Hines, as referred to previously.  Indeed, the tribunal was satisfied that this approach was consistent with what is stated in Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 2553 – 2558.01.  Further, the tribunal considered that, when assessing compensation on a just and equitable basis and, depending on the facts as established by the tribunal, it might be possible for a tribunal to take the view that, as seen in Polkey, that a dismissal would not have occurred in any event prior to a certain date, because certain procedural safeguards had to be followed; and that dismissal, which might have occurred thereafter had to be assessed as a matter of chance.  Indeed, the respondent’s representative, in the course of his submissions, did not disagree that such an approach could, in appropriate circumstances, be adopted by a tribunal. 

 

4.8     Similarly, the tribunal was of the view that it was entitled, depending on the facts found, to consider whether there might have been a subsequent fair dismissal for some other good reason and, if so, when.  Such an approach is given support in the recent decision, albeit on very different facts to those found in the present proceedings, in the case of Cox  v  North Devon Healthcare NHS Trust [2015] UKEAT/0144/13.  A potential fair reason can relate to the capability of the employee for performing work of the kind which he was employed by the employer to do; ‘capability in relation to an employee means capability assessed by reference to skill aptitude, health or any other physical or mental quality (see Article 130(2)(a) and (3)(a) of the 1996 Order).  Further, the above decision confirmed there can also be a potential fair reason if is in for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ (see Article 130(2)(b) of the 1996 Order).

 

4.9     For the purposes of this decision it is not necessary to consider in detail the issues surrounding a fair dismissal for reason of capability (see Harvey on Industrial Relations and Employment Law, Section D1 1101 and following).  However it is of relevance to note the judgment in the case of James  v  Waltham UDC [1973] IRLR 202 and the necessity for certain procedural steps to be followed in such a case whether it arises from incompetence or ill-health.  It can involve consultation, in particular, in case of ill-health with doctors in an appropriate case and consultation with the employee arising out of any such evidence obtained (see East Lindsey District Council  v  Daubney [1977] IRLR 181) and also requires, in particular:-

 

“A discussion so that the situation can be weighed up, bearing in mind the employer’s need for the work to be done and the employee’s need for time in which to recover his health (see Spencer  v  Paragon Wallpapers [1977] ICR 301).”

 

This whole process can take time, not least where there are conflicting medical opinions.  However, as seen in Harvey on Industrial Relations and Employment Law (Paragraph 1241) – where an employer is faced with conflicting medical advice he will not necessarily be acting unfairly if he accepts the report which is less favourable to the employee and dismisses him; but much will depend on the facts including the nature of risk involved in retaining the employee at work.

 

4.10    Article 45 of the 1996 Order provides:-

 

“(1)     An employer shall not make a deduction from the wages of a worker employed by him unless –

 

(a)      the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract; or

 

(b)      the worker has previously signified in writing his agreement or consent to the making of the deduction.”

 

4.11    Article 56 of the 1996 Order provides:-

 

“Where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer –

 

(a)      ... to pay to the worker the amount of any deduction made in contravention of Article 45.”

 

5.1     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.

 

5.2     The tribunal is satisfied that the respondent was entitled, in view of his previous performance and behavioural issues but, in particular, the events of 15 April 2014 which involved Mr Leslie Clarke, to require the claimant, on his return to work,                 on 16 April 2014 to undergo tests under the respondent’s drug and alcohol misuse policy and procedure.  Indeed, this was not disputed by the claimant and no issue arises in relation to how those tests were carried out by Randox.  However, significantly, and in accordance with the policy upon the completion of the tests, the claimant was suspended on full pay pending the return of the results of the tests.  Subsequently, it was necessary for the test results obtained to be further considered and advice to be obtained by the respondent from the respondent’s Occupational Health Consultant, Dr Jenkinson, in view of the tests showing ‘presumptive positive’ for two named drugs.  Again, the tribunal could find no breach of contract at this stage in the process.  In particular, he continued to be paid full pay and he was kept informed by e-mail what was happening and a further meeting was held with him on 1 May 2014, when he gave written consent for access by the consultant to his medical records.

 

          Indeed, in the tribunal’s view, until the meeting on 8 May 2014, the actions of the respondent could not be the subject of any criticism.  Indeed, the respondent’s General Manager, Mr Scott, well aware of the delays that can occur in obtaining medical records asked for the claimant to get the records from the General Practitioner himself.  However, before the scheduled meeting with the claimant on 8 May 2014, the Chairman of the company, Walter Watson, decided, and so instructed the management, the claimant was no longer to be paid any pay whilst he was on such suspension.  The tribunal is satisfied that this unilateral action by Mr Watson was contrary to not only the terms of the policy but also the specific agreement made with the claimant.  As if this was not serious enough, both the senior managers, Mr Barr, and Mr Scott, were fully aware the actions of Mr Watson were in breach of the policy and the agreement but yet did not take, of feel able to take, any action to ensure the claimant was paid in full in accordance with his contract of employment.  To fail to pay an employee the pay to which he is entitled under his contract of employment is, in the judgment of the tribunal, a very serious matter and goes to the root of a contract of employment.  It has to be remembered that the claimant was to receive no pay; but he would still have to pay his normal financial outgoings.  To his credit, the claimant did not immediately react to these actions of the respondent by immediately resigning.  He calmly pointed out in the e-mail of 9 May 2014 to Mr Scott  - “suspended with no pay is a bit difficult” – which must have been all too obvious to Mr Scott.  In an e-mail to Mr Scott, of 27 May 2014, he pointed out the respondent was not entitled to suspend him without pay and to ask for confirmation he would be reimbursed and paid going forward.  Again the tribunal was impressed with the manner in which he set this issue out in his e-mail, without histrionics or emotion.  Despite this, Mr Scott in his reply of 29 May 2014 did not address these issues in any way.

 

          The claimant was told by the consultant on 4 May 2014 that he had been given the ‘all clear to work’ and in an e-mail to Mr Scott asked for his pay to be reinstated and the unpaid suspension to be reimbursed and he pointed out, not unreasonably in the circumstances, he was in financial difficulties.  Again there was no reply from Mr Scott. Significantly, on 6 June 2014, both the claimant and the respondent received the consultant’s report, which, in terms, confirmed what the claimant had said in his e-mail of 4 June 2014.  The tribunal does not believe Mr Barr can be criticised for deciding to seek further advice from the consultant given the apparent change of opinion by the consultant.  Mr Barr and Mr Scott knew, from the report and the claimant’s e-mail, the claimant had an expectation he would be able to return to work but he was not contacted and was not told what was happening.  The claimant, in the absence of any e-mail from the respondent about what was happening, wrote to the respondent on 10 June 2014 resigning – stating he wished to resign with immediate effect as he felt the respondent’s treatment had left him with no alternative but to resign.  He set out three reasons.  It is clear from the reasons set out that a reason for doing so and which played a part in the dismissal was the failure to pay him his full pay, or indeed any pay, whilst on suspension, following the meeting with Mr Watson.  In fact the tribunal is satisfied this was the principal reason; but, as seen in the authorities in Paragraph 3.6, this was not necessary to establish a claim of unfair constructive dismissal.  It was enough that this failure to pay him the pay, to which he was entitled, was a repudiatory breach and a reason for his resignation.  Indeed, on the facts as found by the tribunal, it does not accept there was any breach of confidentiality as alleged by the claimant; but that is irrelevant to the conclusion of the tribunal in this matter in light of the above authorities.

 

          In fairness to Mr Scott and Mr Barr, neither tried, in evidence, to stand over the actions of Mr Watson – but equally, at the time, neither of them had done anything to ensure the claimant was paid what he was entitled to, and which each of them knew he was entitled to.

 

5.3     It is apparent from the gradual build up of the terms of the claimant’s e-mails, despite the fact he knew the failure to pay him was in breach of his contract of employment, he was reluctant to take any immediate action and was prepared to give the respondent every opportunity to remedy the situation; but it failed to do so.  Indeed, the claimant did not send his letter of resignation until close of business on 10 June 2014, in the hope he would not have to do so.  In fairness to the respondent’s representative there was no suggestion by him the claimant ‘delayed’ his resignation (see Harvey on Industrial Relations and Employment Law, Section 1 D1 Paragraph 524 – 525)

 

          The claimant, given his serious financial situation, of which the respondent had express and, in any event implied, notice had to take a decision which could not be delayed any longer, if he was to be able to sign on at the local job centre and to try to remedy his deteriorating financial situation.

 

5.4     The tribunal is satisfied that the failure to pay the claimant was a serious repudiatory breach of his contract, going to the root of the contract and was a reason for/played a part in his decision to resign; and, in the circumstances, he was justified in doing so.  By the refusal of the respondent to act on the e-mails sent by the claimant protesting about the failure to pay him, the respondent showed it had no intention of honouring the express terms of the contract (see Adams  v  Charles Zub Associates Ltd [1978] IRLR 551).  Also, it was in breach of the implied terms of his contract of employment by doing so in a manner that was likely to destroy or serious damage the relationship of trust and confidence between the claimant and the respondent (the Meikle Term).  In such circumstances, the tribunal was satisfied not only was the claimant constructively dismissed but also the said dismissal was unfair.  The respondent, in failing to pay him, over said period, and by failing to respond to his correspondence on the issue failed to act reasonably in the circumstances (see Stevenson & Co (Oxford) Ltd).

 

5.5     In light of the tribunal’s decision set out above, it was not necessary for the tribunal to consider in any detail the issue of ‘final straw’ (see Paragraph 3.7 of this decision).  If it had been necessary to do so, the tribunal would have found that the failure to reply to the claimant’s e-mail of 4 June 2014 and to update him before the close of business on 10 June 2014 as to what was happening, may not, in themselves, have been breaches of contract; but, in light of the ongoing failure to pay following the meeting on 8 May 2014, these further failures were ‘the last straw’ and would have entitled the claimant to resign.

 

5.6     The tribunal found particularly concerning the actions of the respondent, when sending the claimant his P45, to include the sum of £420.24 for statutory sick pay.  It provided no explanation for this payment, which in the tribunal’s judgment, was not a payment to which the claimant was entitled to under the relevant policies and procedures and legislative provisions.  If it was some form of error, as Mr Barr and Mr Scott suggested in evidence, the tribunal found it surprising this was not previously stated or indeed the error rectified.  Indeed, as set out previously, the tribunal does not believe it was an error but a cynical and misguided attempt to cover up the decision of Mr Watson, the Chairman of the respondent not to pay the claimant, which the senior management knew was wrong and in breach of the claimant’s contract of employment.  The senior management appear to have been powerless to remedy the situation.  To pay an employee in accordance with his contract of employment is central to such a contract, not least in the present adverse financial climate.  To fail to pay the claimant in accordance with his contract in the circumstances of this particular case and then to seek to in some way to cover it up, the tribunal found deeply disturbing and unfair, especially where the actions of the Chairman involved the livelihood and financial position of an employee.  Such actions cannot be justified under any circumstances.

 

5.7     The tribunal was satisfied the claimant was a worker for the purposes of Article 45 of the 1996 Order.  Further, it was satisfied, the respondent by failing to pay the claimant his pay to which he was entitled, after the meeting on 8 May 2015 to the date of his resignation, made unauthorised deductions from the wages of the claimant and his said claim is therefore well-founded and the tribunal so declares.  The tribunal further orders the respondent to pay to the claimant the sum of £958.96 so deducted:-

 

                    Loss of salary from 7 May 2014 to 10 June 2014

                    at £275.84 per week                                                            £1,379.20

                    Less payment of £420.24 (‘SSP’)                                          £   420.24

                                                                                                              £   958.96

 

6.1     In light of the tribunal’s conclusions that the claimant was unfairly constructively dismissed by the respondent, he was therefore entitled, by way of remedy, to be paid compensation by the respondent, and before assessing the compensation to be paid by the respondent to the claimant, it was necessary for the tribunal to consider what relevance, if any, the report of Dr Maze had to this issue of remedy.  It is significant, in the tribunal’s judgment, that Dr Maze was asked in his report – ‘Whether it was fair and reasonable to suspend [tribunal’s emphasis] the employee from the factory floor pending further investigations on the basis of both the signs of erratic behaviour and the findings of the test results?’.  He states, in reply, ‘it is a management decision but, in essence, considers it would be reasonable to do so’.  Therefore he was expressly only asked about suspension, in contrast to the questions of Dr Jenkinson, as set out below.

 

          It may be argued that there is a difference of opinion between Dr Maze and Dr Jenkinson; but this may be accounted for by the fact Dr Jenkinson examined the claimant.  But it also may be accounted for by the fact that each of the consultants were asked different questions by the respondent.  Dr Jenkinson was asked, for example (in letter of 9 June 2014) ‘on what grounds do you advise that Mr Keenan is fit to resume work without adjustment, what level of surety do we have that Mr Keenan will not revert back to his previous mindset beyond the snapshot of behaviour that was witnessed during your assessment?’.  He was asked this question in the context that Dr Barr stated ‘we are not comfortable in reinstating [tribunal’s emphasis] Mr Keenan to the industrial environment without further explanation of the above, without any further in-depth analysis of his mindset ...’.

 

          A difficulty for the tribunal in resolving these issues is that neither consultant was called to give evidence and such difference of terminology/terms of the question may or may not be of significance.  Certainly, Dr Maze appeared to support a decision for a further period of suspension for further investigation.  By way of contrast, Dr Jenkinson was satisfied the claimant was fit to work without adjustment based on his clinical assessment; although he does raise issues of capability which he accepted could not be proven during a 30 minute consultation and would require observation through a working week.

 

          Thus, in the tribunal’s view, neither medical report was of assistance to the tribunal in determining, for the purposes of remedy, whether the tribunal should reduce the compensatory award on the basis that the claimant might have ceased to be employed in any event if a fair procedure had been followed.  To determine this inevitably was going to involve some degree of speculation, as was made clear in the cases of Software 2000 Ltd  v  Andrews and Brinks Ireland Ltd  v  Hines, and it is for the employer to adduce relevant evidence.  However, the tribunal concluded, in the circumstances, and in the absence of any evidence from Dr Maze that his report merely confirmed, in his view, a further period of suspension but no more, would be reasonable.  Dr Jenkinson in his report, by way of contrast, whilst saying the claimant was fit for work on a clinical assessment, did not rule out the possibility of a capability issue – which can be a fair reason for dismissal (see Cox  v  North Devon Healthcare NHS Trust and Article 130(2)(a) (b) and 3(a) of the 1996 Order).  However, there was not any sufficient and/or relevant evidence before the tribunal to show such a capability finding might have been made in this case.  It is also apparent from the authorities, referred to in Paragraph 4.9 of this decision, for such a finding to be made would have required detailed procedural steps to be taken by the respondent.  All of these would inevitably have taken some considerable time.  Interestingly, Dr Maze’s report, although he did not examine the claimant, took one month to obtain.  In the absence of any such relevant evidence on these issues the tribunal was not therefore prepared to make any reduction to the compensatory award in this matter, on the basis of the report of Dr Maze or indeed Dr Jenkinson.

 

6.2     The tribunal noted that the claimant was still on the books of Industrial Temps but his temporary agency work at Nitronica had ended immediately prior to the hearing of this matter.  He was hopeful he would get further temporary agency work.  In the circumstances, the tribunal decided it was appropriate to allow for a complete loss of earnings (namely £275.84) for four weeks after the substantive hearing of this matter to enable him to get further work and then a reduced loss of earnings (£55.84) for a further period of 16 weeks to take account of his expected/likely earnings as an agency worker in that period; at a rate similar to the earnings he was receiving from Industrial Temps when working at Nitronica.  By the end of that period, the tribunal considers he should not be compensated for any further loss of earnings, as it would be hopeful that, by that date, the claimant will be able to obtain further permanent employment at or about the level of his previous earnings with the respondent.

 

6.3     The tribunal had to consider whether it was satisfied the claimant had contributed to his dismissal.  In this context, it must be recalled, the tribunal is required to look at the employee’s conduct above and whether it contributed to or played a part in the dismissal.

 

          As seen in Morrison  v  Amalgamated Transport and General Workers Union [1989] IRLR 361 the tribunal has to take a broad approach and should not be confined to a particular moment, not even the moment when the employment is terminated.  There was no doubt that the claimant’s conduct had led to his suspension and the necessity for the drug tests by Randox.  However, what led to his constructive dismissal, as found by the tribunal, was the refusal of the respondent to pay him what he was entitled to during the period of suspension.  In the tribunal’s view, he cannot be blamed for that in any way.  Therefore the tribunal decided it was not appropriate to make any reduction to the compensatory award for any contributory fault on the part of the claimant.  Indeed, it was not strongly suggested by the respondent’s representative, in his submissions, there should be any such reduction in the circumstances.

 

6.4     The tribunal therefore assessed the compensation to be paid by the respondent to the claimant in respect of his claim of unfair dismissal as follows:-

 

                    A.       Basic Award

 

                              £333.20 x 2                                                               £  666.40

 

                    B.       Compensatory Award

 

                    (i)       Loss of earnings from 10 June 2014 to

                              8 September 2014 at £275.84 per week

                              (£275.84 x 13)                                                           £3,585.92

 

                              (ii)      Reduced loss of earnings from

8 September 2014 to 4 February 2015

at £55.84 per week (£55.84 x 21)                     £1,172.64

                                        (To take account of earnings from

                                        Industrial Temps)

 

                              (iii)      Loss of earnings from 4 February 2015 to

                                        4 March 2015 at £275.84 per week

                                        (4 x £275.84 per week)                                    £1,103.36

                                        (See Paragraph 6.2 of this decision)

 

                              (iv)      Reduced loss of earnings from

4 March 2015 to 24 June 2015

at £55.84 per week

                                        (16 x £55.84)                                                  £   893.44

                                        (See Paragraph 6.2 of this decision)

 

(v)      Loss of statutory rights                                    £   400.00

 

(vi)      Loss of pension contributions                            £   258.00

                                                                                                              £7,413.36

 

Total Monetary award (A & B)                                  £8,079.76

 

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

 

6.6     The Employment Protection (Recoupment of Jobseeker’s 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:         4 – 6 February 2015, Belfast

 

 

Date decision recorded in register and issued to parties: