Mullan v Paul Joseph Hughes [2009] NIIT 1402

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1402/08

1453/08

CLAIMANTS: Paul Mullan

Paul Joseph Hughes

RESPONDENT: FK Lowry Piling Ltd

DECISION

The unanimous decisions of the tribunal are as follows:-

(A) Mr Paul Mullan’s claim of unfair dismissal is not well-founded. His claim for pay in lieu of notice is not well-founded. Therefore, both of his claims are dismissed.

(B) Mr Paul Hughes’ claim of unfair dismissal is not well-founded and it is dismissed. His claim for pay in lieu of notice is well-founded and it is ordered that the respondent shall pay to him the sum of £1,743.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mrs Gilmartin

Mr Magennis

Appearances:

The claimant, Mr Mullan, appeared in person.

The claimant, Mr Hughes, appeared in person.

The respondent was represented by Mr P Bloch, of Engineering Employers’ Federation Northern Ireland.

REASONS

1. These two cases were considered and heard together.

2. Each claimant was employed by the respondent company (‘the employer’) for many years.

3. Each claimant was dismissed, without notice or pay in lieu of notice, in September 2008. In each instance, it is agreed between the claimant and the employer that the dismissal was for a reason relating to the conduct of the relevant claimant.

The claims

4. Originally, each claimant was claiming only in respect of unfair dismissal. However, at the outset of the hearing, after being informed of the potential possibility of making a separate claim for notice pay, each claimant asked for leave to amend his claim form so as to include a claim in respect of notice pay. In each case, leave was granted, with the agreement of the respondent.

Facts

5. We made the following findings of fact:-

(1) The respondent/employer employs a considerable number of employees. It is mainly engaged in carrying on piling operations, in the context of construction works. It is part of the Lagan group of companies.

(2) All of the maintenance of the employer’s machinery was carried out by another company within the Lagan Group.

(3) Mr Hughes was due to retire late in 2008.

(4) At the time of his dismissal, he had been working as a ‘banks man’ on a piling rig. He did not work in any supervisory capacity; he was employed at works operative level. Throughout the course of his employment with the respondent, the claimant had been employed on many tasks, and had not always been employed as a piling banks man.

(5) At the time of the accident which triggered the investigation which resulted in his dismissal, Mr Hughes was not the subject of any live disciplinary warnings. He had never previously committed any disciplinary offence which, in the view of the employer, constituted ‘gross misconduct’.

(6) At the time of his dismissal, Mr Mullan was employed by the employer as a piling foreman. He had been employed by the company since 1975. He had a clear disciplinary record.

(7) Each of the claimants was dismissed because of a disciplinary investigation and procedure which began as a result of an accident which happened on 13 August 2008. On the day of the accident, both of the claimants were engaged in pile driving on a building site. Mr Mullan was driving a drilling rig. Mr Hughes was the ‘banks man’ in respect of that rig. Mr Mullan was Mr Hughes’ foreman.

(8) The drill would stop if its gates opened. The gates tended to open whenever the rig hit an obstruction.

(9) Therefore, the opening of the gates acted as a warning to the crew that an obstruction was being encountered.

(10) Crews found that the constant opening of the gate was a nuisance. It held up production (because, as a result of the opening of the gates, it was necessary to stop the drilling until the gates could be closed again). Therefore, Mr Hughes put a crowbar into the gates. The effect of doing so was to keep the gates closed.

(11) On 13 August 2008, the crowbar flew out of the gates. It injured a passing worker. He suffered serious injuries to his leg.

(12) The employer had a set of written procedures which were regularly updated. There was a ‘Procedure for installation of CFA concrete piles’ (‘the Procedure’), which was the procedure relevant to pile driving. The Procedure included some health and safety rules. The version of the Procedure which was in force at that time did not address the possibility of the auger gates being kept artificially closed. It did not authorise such a practice and it did not forbid any such practice.

(13) It did however provide as follows:-

“9b Gates must not be opened or closed while the augers are rotating due to the risk of trapping fingers ... .”

(14) Clearly, paragraph 9b is intended to address the safety risks which would arise if a worker were to intermeddle with the machine while it is in motion. Clearly, it does not address the safety issues which arise when an auger is being artificially kept closed.

(15) Douglas Cook is a director of the employer company. At two separate health and safety seminars (one held in December 2007 and the other held in the summer of 2008) reference was made by participants to the practice of keeping auger gates closed (by the insertion of a crowbar or some similar instrument). On both occasions, Mr Cook told those present that such a practice was inappropriate and should not be followed.

(16) Both Mr Mullan and Mr Hughes attended both seminars. However, throughout each relevant investigatory and disciplinary process, each claimant maintained that he had been absent from the room, on each occasion, when Mr Cook had been making the relevant remarks.

(17) In the course of the investigatory process, a written statement was obtained from Mr Ed Harrison. According to that statement, during the June seminar, there was one comment concerning the use of a bar to forcibly restrain the gates on CFA piling rigs and a discussion then ensued in which Mr Mullan and Mr Hughes participated. The statement continued that the discussion:-

“ ... centred on the site staff stating that they were having to force the doors closed because they kept opening during drilling. Douglas Cook asked them why they were doing this as they were not supposed to. Douglas stated that they were supposed to stop work, contact Lagan Plant to get them to send out a fitter then contact their line manager.”

Having had the advantage of receiving oral testimony from Mr Harrison and from Mr Cook, we are satisfied that, in making the relevant remarks during the June seminar, Mr Cook was not focusing on safety issues. Instead, he was merely pointing out that the more business-like procedure was to stop work and get the experts to repair the machine (as distinct from attempting to improvise).

(18) That view is supported by the following considerations. During the June seminar, Mr Cook expressed no shock at the fact that the practice of forcing the doors closed was still continuing; he did not confirm his views in writing, in any communication whatsoever; he did not write to any members of staff to remind them that the practice ought not to be followed; and no steps were taken to change the relevant written procedure (‘the Procedure’), so as to refer to the relevant practice.

(19) During the investigatory and disciplinary processes, a statement from Mr Adrian O’Rourke was also available. Mr O’Rourke could remember the topic of holding the gates closed being mentioned during the June seminar, and ‘... that it was stated that at no time should they be held closed ...’. However, he could not recall who raised that topic or where Paul Mullan or Paul Hughes were at the time.

(20) The accident came as a terrible shock both to Mr Hughes and to Mr Mullan. Neither had expected that the use of the relevant practice would ever result in any serious harm to anybody. Each claimant was very upset that anybody had been injured.

(21) In the aftermath of the accident, both claimants complained that the machine which they had been using on the day of the accident had defects which had not been adequately repaired. However, neither claimant suggested that any relevant defect rendered the machine unsafe. Instead, at most, the alleged defects, according to the claimants, had the effect of making the gates more inclined to open (so that the gates had a tendency to open even when a relatively minor obstruction was encountered).

(22) As a result of the accident, a Health and Safety Executive investigation began. Soon after the accident, both Mr Hughes and Mr Mullan were suspended, and an investigatory and disciplinary process against each of them began.

(23) The employer’s disciplinary rules were contained in its ‘Employee Handbook’ (‘the Handbook’). As paragraph 6.3 of the Handbook makes clear, the employer recognised three types of misconduct, in ascending level of severity, consisting of ‘minor misconduct’, ‘major misconduct’ and ‘gross misconduct’. Paragraph 6.3 then went on to provide as follows:-

“The following list shows examples of the type of rules/offences which the Company has categorised for each of these levels of misconduct.

This is not an exhaustive list and management reserves the right to decide how these or any other type of behaviour or conduct shall be categorised or re-categorised.”

Paragraph 6.3.2 contained the list of ‘Major Misconduct’ offences. That list contained the following:-

‘Serious neglect of safety/hygiene/security rules’

‘Insubordination’

‘Discrimination/Harassment/Victimisation’

Paragraph 6.3.3 of the Handbook contained the list of ‘Gross Misconduct’ offences. That list included the following:-

‘Theft or fraud’

‘Physically violent behaviour or threatening behaviour’

‘Deliberate failure to comply with Company Policies or Procedures’

‘Deliberately ignoring, or failing to comply with, safety/hygiene/ security rules and thereby endangering one’s own or another’s physical well-being or safety’

‘Serious Harassment - sexual, or otherwise’

‘Discrimination of a particularly serious nature’

and

‘Serious occurrences of Victimisation’

(24) The subject-matter of the disciplinary investigation against Mr Hughes was set out in a letter dated 18 August 2008. The letter was in the following terms:-

“Following precautionary suspension, you are now required to attend a disciplinary investigation ...

...

We would advise you that the disciplinary investigation alleges Gross Misconduct under the policies and procedures of the Employee Handbook for ‘deliberately ignoring, or failing to comply with, safety/ hygiene/security rules and thereby endangering one’s own or another’s physical well-being or safety’. Following investigation and hearing should Gross Misconduct be found to [be] applicable, this could lead to summary dismissal. ... .”

(25) The equivalent letter to Mr Mullan was in the following terms:-

“Following precautionary suspension, you are now required to attend a disciplinary investigation ...

The disciplinary investigation will discuss events associated with the accident on Wednesday 13^th August 2008 ...

(26) On 27 August 2008, letters calling Mr Hughes and Mr Mullan to their respective disciplinary hearings were sent to them. In each instance, the disciplinary charges were essentially the same as the charge which, in each respective case, had been the subject-matter of the disciplinary investigation.

(27) During the course of the investigatory and disciplinary processes, the employer received credible evidence that Mr Mullan was well aware of the fact that, on the day in question, Mr Hughes was inserting the crowbar into the augers.

(28) Mr Cook was the decision-maker at the first stage of the internal disciplinary process. He decided that both of the claimants should be dismissed. He also decided, in each instance, that the dismissal should take immediate effect.

(29) In the Hughes case, he explained the reasons (in the letter of dismissal) in the following terms:-

“The practice of using a crowbar to physically restrain the auger gates for opening in the manner adopted was an unsafe practice. I am satisfied that you had been informed of this fact by the Company and should have known this to be an unsafe practice. While discrepancies exist between statements made by yourself and reports from our Plant department as to the working condition of the gates immediately following the accident, nevertheless the requirements of the Company are to stop works and notify your manager or Plant Department in the event of concerns about the safe operation of your plant must be priority.”

(30) In notifying Mr Mullan of his dismissal, Mr Cook explained the reasons for dismissal in the following terms:-

“The practice of using a crowbar to physically restrain the augur gates for opening in the manner adopted was an unsafe practice. I am satisfied that you had been informed of this fact by the Company and should have known this to be an unsafe practice. I am also satisfied that from wider investigation carried out that you witnessed this unsafe practice and continued with piling operations and therefore condoned these unsafe actions. It is not acceptable to quote time pressures as an acceptable excuse to circumvent safety practices. Discrepancies exist between statements made by yourself and reports from our Plant Department as to the working condition of the gates immediately following the accident. Nevertheless the requirements of the Company are to stop works and notify your manager or Plant Department in the events of concern about the safe operation of your plant ... .”

(31) Accordingly, there was a significant difference, in each case, between the allegation as set out in the investigatory and disciplinary initiation letters on the one hand and in the letter of dismissal on the other hand. The former documents had alleged a breach of rules. However, in each instance, the letter of dismissal refers to an unsafe practice which (according to Mr Cook) had been carried out by the relevant claimant in circumstances in which that claimant should have known that the practice was unsafe.

(32) In arriving at the disciplinary decision, Mr Cook concluded that, despite his denials to the contrary, Mr Mullan must have been well aware that Mr Hughes was, on the day of the accident, using the crowbar to keep the doors closed.

(33) In arriving at his decision, Mr Cook took account of his conclusion that at both the December 2007 and June 2008 seminars, both of the claimants were listening when Mr Cook was making his comments about the practice of keeping the auger gates closed.

(34) Both of the claimants had a right of internal appeal. Both of them exercised that right. Each of them appealed to Mr Mark Walsh. In each instance, the appeal was unsuccessful. In each instance, Mr Walsh informed the relevant claimant of the failure of the relevant appeal in the following terms:-

“Following your appeal hearing ... I have considered all that you have said and I must now inform you that I am satisfied that the decision taken by Douglas Cook to dismiss you was correct and fair.

.... .”

(35) In the context of the unfair dismissal claims, it is unnecessary for the tribunal to arrive at conclusions as to whether Mr Mullan really was aware of the use of the crowbar by Mr Hughes on the day in question, or as to whether Mr Hughes and/or Mr Mullan really were there when Mr Cook made the relevant remarks, at each of the relevant seminars, in relation to the use of crowbars to keep auger gates closed. However, for the purpose of arriving at conclusions in relation to the notice pay claims, it is necessary for the tribunal to arrive at its own conclusions on those matters. The following sub-paragraphs have to be read in conjunction with those comments.

(36) We are satisfied that Mr Mullan was aware that Mr Hughes was using the crowbar to keep the gates closed.

(37) During the course of the subsequent disciplinary process, Mr Mullan told untruths about that awareness.

(38) We cannot condone those untruths, but we can and do recognise that they are understandable from a human point of view, because Mr Mullan recognised that his job was at risk. Prior to this instance, Mr Mullan had never been disciplined for failing to tell the truth.

(39) On balance, we have concluded that it is more probable than not that each of the claimants was aware of the comments which Mr Cook made (at the January and June seminars) about the use of crowbars to keep auger gates closed.

(40) For ease of reference, and in order to avoid unnecessary duplication, we have included some additional findings of fact elsewhere in this Decision.

Unfair dismissal

The issues

6. In the context of the unfair dismissal claim of each claimant, the issues are as follows:-

(1) Because of its severity, was the dismissal of each relevant claimant outside the range of reasonable responses?

(2) In relation to each dismissal, were there any important procedural shortcomings in connection with that dismissal?

(3) If issue (2) is answered in the affirmative in either of the cases, has the employer shown, in that particular case, that it would have decided to dismiss the employee even if there had been no procedural shortcoming?

The arguments

7. In relation to the unfair dismissal issues, the arguments of the parties can be summarised as follows.

8. Mr Mullan argued that no reasonable employer would have concluded that he was aware that Mr Hughes was using a crowbar to keep the auger gates closed. In response, Mr Bloch argued that the employer had had ample evidence to support that conclusion.

9. Both claimants argued that the sanction of dismissal was grossly disproportionate in the circumstances of this case. Both had had many long years of service. In the case of Mr Hughes, that service was soon to come to a natural conclusion (through the process of retirement). The harm done was out of all proportion to the harm which was intended; this was a freak accident. The company had not prohibited the relevant practice (of using crowbars) through the promulgation of a new company rule, or through the formal amendment of the existing rules, although they had had ample opportunity to do so. In reality, the company’s disapproval of the practice had not come to the attention of either of the claimants. For all those reasons, dismissal, in the circumstances of each claimant, was such a disproportionate sanction as to bring the relevant dismissal outside the range of reasonable responses.

10. The employer’s response can be summarised as follows. This was an obviously unsafe practice, as was demonstrated by the fact that there was a serious accident. The reality is that both men were present on two occasions when Mr Cook had made it clear that the practice was not to be carried out. Mr Hughes, by carrying out the practice, and Mr Mullan, by condoning the practice, had each failed to comply with a relevant safety rule and had thereby endangered their own or another’s safety. That was an offence which was classified as ‘Gross Misconduct’ for the purposes of the employer’s Employee Handbook. Because it was an offence which was classified as ‘Gross Misconduct’ in the Handbook, the employer was acting within the range of reasonable responses in dismissing (instead of imposing some other sanction).

11. Each claimant argued that the employer had, in his case, stepped outside the range of reasonable responses because of procedural shortcomings which had arisen in relation to his particular disciplinary process. According to each claimant, the problem was that, from the outset of the process, the employer was determined that dismissal was to be the outcome. In response, Mr Bloch argued that it was clear that the respondent had approached the disciplinary process with an open mind, as was demonstrated by the careful and meticulous way in which each disciplinary process had been carried out.

The law

12. Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’) provides that certain employees, in certain circumstances, have the right not to be unfairly dismissed. Article 130(1) of the Order provides that, in determining for the purposes of the unfair dismissal legislation, whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(1) the reason for the dismissal; and

(2) that it is potentially fair.

13. Obviously, a reason relating to the conduct of the employee is a potentially fair reason.

14. Article 130(4) of the Order provides that where the employer has shown the reason for dismissal and has also shown that the reason is a potentially fair reason:-

“(4) ... the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

15. In considering (in the context of Article 130(4) of the Order) whether an employer acted reasonably or unreasonably in deciding to dismiss, a tribunal should generally follow the guidance which was set out in British Leyland UK Ltd v Swift [1981] IRLR 91. In that case Denning MR set out the correct test in the following terms:-

“Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view : another might reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair : even though some other employers may not have dismissed him.”

16. In considering the Article 130(4) question, we must consider the reasonableness of the relevant employer’s conduct, not simply whether we (the members of this tribunal) ourselves consider the dismissal to be fair. Furthermore, in judging the reasonableness of the relevant employer’s conduct, we must not substitute our own decision (as to what would be the right course to adopt) for that of the employer.

17. Instead, the function of this tribunal, as an industrial jury, is to determine whether in the particular circumstances of this case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, the dismissal is fair and if the dismissal falls outside that band it is unfair. (See ‘Harvey on Industrial Relations and Employment Law’, at paragraph 973 of Division D1.)

18. The range of reasonable responses test (as described above) also applies to the procedural aspects of a dismissal. Therefore, the objective standards of the reasonable employer have to be applied in relation to the procedural aspects of the dismissal, just as they have to be applied in relation to the question of whether or not dismissal was a proportionate sanction. So this tribunal could not properly substitute its own opinion as to what was a reasonable and adequate investigation, or as to what was a reasonable and adequate disciplinary process. Instead, we have to apply the objective standard of the reasonable employer in relation to the procedural aspects of the case.

19. Article 90 of the Industrial Relations (Northern Ireland) Order 1992 (‘the 1992 Order’) provides for the issuing of statutory codes of practice in respect of various matters. Over the years, the Labour Relations Agency has issued several codes of practice pursuant to that provision. Those codes are and have been of considerable assistance to all those operating within the employment field. The current code of practice in relation to disciplinary matters (‘the Code’) was issued in 2005.

20. The Code recommends that employers should inform their employees of the relevant employer’s view as to the seriousness of various offences. With that aim in view, the Code suggests that employers should categorise offences according to three levels of seriousness. The Code provides guidance as to how that categorisation could be carried out. The Code labels the most serious category as ‘gross misconduct’ offences.

21. Paragraph 59 of the Code provides as follows:-

“59. Acts which constitute gross misconduct are those resulting in a very serious breach of contractual terms and are best decided by organisations in the light of their own particular circumstances. Such acts, whilst they occur only once, might be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract. Examples of gross misconduct might include:-

· theft or fraud;

· physical violence or very serious incidents of bullying;

· deliberate and serious damage to property

· very serious misuse of an organisation’s property or name;

· deliberately accessing internet sites containing pornographic, offensive or obscene material;

· very serious insubordination;

· very serious cases of unlawful discrimination or harassment;

· bringing the organisation into very serious disrepute;

· very serious incapability at work brought on by alcohol or illegal drugs;

· causing loss, damage or injury through very serious negligence;

· a very serious breach of health & safety rules; and

· a very serious breach of confidence.”

22. Paragraph 5 of the Code makes clear that the question of what constitutes ‘reasonable behaviour’, in the context of an unfair dismissal application is ultimately a matter for tribunals to decide (as distinct from being provided for by prescriptive provisions of some statutory code).

23. The real functions of Article 90 codes are explained at Article 90(1) of the 1992 Order. Article 90(1), as amended, provides as follows:-

“90(1) The Agency may issue Codes of Practice containing such practical guidance as the Agency thinks fit for the purpose of promoting the improvement of industrial relations or for purposes connected with trade union learning representatives ... .” [Our emphasis]

24. Article 90(16) of the 1992 Order provides for the implications of any failure on the part of an employer to observe any provision of a code of practice:-

“(16) A failure on the part of any person to observe any provision of a Code of Practice issued under this Article shall not of itself render him liable to any proceedings, but in any proceedings before an industrial tribunal or the Industrial Court:-

(a) ...

(b) any provision of the Code which appears to the tribunal ... to be relevant to any question arising in the proceedings shall be taken into account in determining that question ... .”

25. As MacDermott J pointed out in Seaton v Ulster Timber Company Ltd [1979] NI 23 (at page 31):-

“It must however be clearly understood that a code of practice is not a code of law – its provisions shall be taken into account by the tribunal but they do not of themselves determine the questions which the tribunal has to answer ... .”

26. Paragraph 19 of the Code includes the following guidance:-

“In cases of gross misconduct, the employer may decide to dismiss for a first offence of a particular kind.”

And paragraph 58 of the Code is as follows:-

“58. Employers should inform employees of the likely consequences of breaking disciplinary rules. In particular, they should list examples of acts of gross misconduct that will warrant summary dismissal.”

27. So the Code contains references to the concept of gross misconduct, and to the possibility of ‘summary’ dismissal. However, the Code is not intended to have effect in connection with notice pay claims. This is obvious because of the terms of Article 90(16), which refers only to proceedings before an industrial tribunal or the Industrial Court. (In 1992, notice pay claims could not be pursued in an industrial tribunal. Even today, the courts have concurrent jurisdiction, alongside tribunals.)

28. Furthermore, in Seaton v Ulster Timber Company Ltd [1979] NI 23, at 32 and 34, MacDermott J pointed out that, in the context of what is now Article 130(4) of the Order, the question of whether or not the relevant offence constituted an offence of gross misconduct at common law is not the acid test; and that, instead, the focus of attention has to be on the statutory question, which is whether or not the dismissal was, or was not, in all the circumstances, fair or unfair, within the meaning of Article 130(4).

29. According to paragraph 1 of the Code, the purpose of disciplinary rules and procedures is to help to promote orderly employment relations as well as fairness and consistency in the treatment of individuals.

30. Among those core principles is the advice that employers should:-

“Use procedures primarily to help and encourage employees to improve rather than just as a way of imposing a punishment.”;

“Never dismiss an employee for a first disciplinary offence, unless it is a case of gross misconduct.”

31. And paragraph 60 of the Code provides as follows:-

“60. Disciplinary procedures should not be seen primarily as a means of imposing sanctions but rather as a way of encouraging improvement amongst employees whose conduct or performance is unsatisfactory ... .”

Our conclusions

32. In each case, the claimant accepts that he was dismissed for the reasons set out by the employer in the relevant letter of dismissal. In each instance, that reason is a reason relating to the relevant claimant’s conduct. Therefore, it is a potentially fair reason.

33. Therefore, in each instance, the issue is whether or not the dismissal was fair and reasonable in all the circumstances (within the meaning of Article 130(4) of the Order).

34. In each instance, we are satisfied that the relevant dismissal was fair from a procedural point of view.

35. Each of the claimants believes that the investigatory and disciplinary procedure in his case was a farce, in that the employer began the process with a settled determination to dismiss the relevant claimant. Even though the burden of proof is neutral in this connection, we consider that the available evidence does not justify us in concluding that the belief of each claimant, in this connection, is correct.

36. In light of the state of the evidence, there is no adequate evidential basis for the proposition that the employer approached the investigatory or disciplinary process with a preconceived determination to dismiss the relevant claimant at all costs.

37. The investigatory process was detailed and was carried out in a meticulous and conscientious manner. In each instance, all of the relevant issues were addressed openly with the relevant claimant, who had the opportunity to respond to the issues being raised.

38. That leaves the question of whether or not, in each instance, in all the relevant circumstances, the decision to dismiss the relevant claimant was so disproportionate as to bring the decision outside the range of reasonable responses. In each instance, we have concluded that this question must be answered in the negative, against the following background and for the following reasons.

39. We have already noted that the Code (see above) recommends that an employee should not be dismissed for a first disciplinary offence unless it falls within the employer’s disciplinary procedure’s most serious category of offences.

40. In paragraph 6.3.3 of the Handbook, the reference to ‘rules’ is a reference to written norms (as distinct from oral pronouncements from a senior member of staff, even oral pronouncements which are made more than once, and even pronouncements which are expressed in trenchant terms). Similarly, the reference to ‘Company Policies or Procedures’ is a reference to written documents (as distinct from a reference to oral pronouncements of senior figures). Those interpretations of those concepts take due account of the fact that ‘Insubordination’ is separately provided for in paragraph 6.3.2, under the heading ‘Major Misconduct’.

41. Accordingly:-

(1) The offence for which Mr Hughes was dismissed is not an offence which was within the list of ‘Gross Misconduct’ offences which are listed at paragraph 6.3.3 of the employer’s Staff Handbook.

(2) The offence for which the claimant, Mr Mullan, was dismissed is not an offence which is listed at paragraph 6.3.3 of the Handbook.

42. However, in terms of seriousness, the Hughes and Mullan offences are more similar to the list of offences at paragraph 6.3.3 of the Handbook (‘Gross Misconduct’) than they are to the list of offences which is contained at Paragraph 6.3.2 of the Handbook (‘Major Misconduct’). Furthermore, as paragraph 6.3 of the Handbook makes clear, the relevant lists do not purport to be exhaustive.

43. Mr Hughes was dismissed because, at the conclusion of the disciplinary process, the company believed that, in using a crowbar to physically restrain the auger gates from opening, he had followed an unauthorised practice, which was inherently dangerous, and which he knew, or should have known, to be an unsafe practice.

44. In light of that offence, and having had regard to any mitigating and aggravating factors, would all reasonable employers have dismissed Mr Hughes? We think not. In our view, the decision to dismiss Mr Hughes, especially when he was so close to retirement, was a harsh decision.

45. However, the decision will only be unfair, for the purposes of the unfair dismissal legislation, if, in all the circumstances, no reasonable employer would have dismissed Mr Hughes for that offence. We cannot so conclude. In our view, some reasonable employers would have dismissed, in the relevant circumstances, for the relevant offence. In arriving at that conclusion, we have paid due regard to the fact that the claimant was so close to retirement, and to his long record of service with the company.

46. Mr Mullan was dismissed because, at the conclusion of the relevant investigatory and disciplinary process, the employer believed that Mr Mullan, as foreman, took no action to dissuade or prevent Mr Hughes from adopting the unsafe crowbar practice which has been described above.

47. We considered that the decision to dismiss him was harsh in the circumstances, especially because of his lengthy record of service and his lack of any disciplinary record. However, we have concluded that at least some reasonable employers would have dismissed Mr Mullan, for the relevant offence, in light of all the relevant circumstances of his case.

48. Those circumstances include the circumstance that the employer had reasonably concluded that the using of a crowbar to physically restrain the auger gates was an unsafe practice and that Mr Mullan should have known that it was an unsafe practice. Mitigating circumstances included the claimant’s lengthy period of service with the company and his clear disciplinary record. Mr Mullan’s refusal to acknowledge that he knew that Mr Hughes was using that practice was obviously an aggravating factor. Mr Mullan’s role as a foreman was also a matter which reasonable employers would take into account in deciding whether the sanction of dismissal was, in the circumstances, an appropriate sanction.

Notice pay

The issues

49. Article 118 of the Order provides that, as a general rule, an employer is required to give an employee 12 weeks’ notice of termination of that employee’s employment, if the employee has continuous service of 12 years or more. There are exceptions to that general rule. Only two of those exceptions are relevant in the circumstances of this case.

50. The first relevant exception occurs in situations in which, under the particular contract of employment, the employer is conferred with a contractual right to terminate the contract in the event of a particular breach of contract by the employee. Below, we refer to such an entitlement as a ‘contractual termination entitlement’.

51. The second exemption is that the duty to give notice does not arise if there has been repudiatory conduct on the part of the employee. In the context of wrongful dismissal, such repudiatory conduct is usually referred to as ‘gross misconduct’.

52. Accordingly, in the context of the notice pay claims, the issues are as follows:-

(1) Did the employer have a contractual termination entitlement in relation to Mr Mullan?

(2) If not, did Mr Mullan engage in repudiatory conduct:

(3) Did the employer have a contractual termination entitlement in relation to Mr Hughes?

(4) If not, did Mr Hughes engage in repudiatory conduct?

The arguments

53. Mr Bloch pointed out that, according to the employee handbook, the employer was contractually entitled to dismiss, for a first offence, in respect of any offence which fell within the list of offences which are set out at paragraph 6.3.3 of the Handbook. He argued that, in each instance, the relevant claimant’s offence consisted of ‘Deliberately ignoring, or failing to comply with, safety/hygiene/security rules and thereby endangering one’s own or another’s physical well-being or safety’. Alternatively, he argued, each claimant’s relevant offence consisted of ‘Deliberate failure to comply with Company’s Policies or Procedures’.

54. He also noted that the Handbook labelled its most serious category of offences as ‘Gross Misconduct’. He therefore argued that any offence which fell within the scope of the ‘Gross Misconduct’ for the purposes of the Handbook must also fall within the scope of ‘gross misconduct’, as that concept is used in the context of the common law.

55. In any event, he asserted, the relevant offence in each case was so serious and so reprehensible as to constitute ‘gross misconduct’ at common law.

56. By carrying out the relevant offence, each claimant had destroyed the trust and confidence which ought to exist between the relevant claimant and the employer.

57. The Seaton case was of limited relevance to the notice pay issues. The Seaton decision depended on the particular factual context of that case. In particular, at the time of the dismissal in that case, no relevant statutory code of practice had as yet come into force.

The law

58. The employer’s ‘Employee Handbook’ (‘the Handbook’) has already been referred to above. Paragraph 6.2 of the Handbook provides that an offence which is labelled as ‘Gross Misconduct’ in the Handbook is an offence:-

“ ... which may lead to summary dismissal.”

59. As already noted above, the Handbook identifies a considerable number of disciplinary offences and divides those identified offences into three categories, depending on the employer’s perception as to the level of seriousness of each offence; and the most serious category of offences is described as ‘Gross Misconduct’ in the Handbook, and that list as contained at paragraph 6.3.3.

60. In the present context, we again note the points already set out above (at paragraphs 22 - 28 above). In our view, Seaton sets out principles which are of general application.

61. As already made clear above, we consider that the ‘rules’ within the meaning of paragraph 6.3.3 of the Handbook are written rules.

62. As we have also made clear above, we consider that the reference in paragraph 6.3.3 to ‘Company Policies or Procedures’ is a reference to written policies or procedures.

63. In deciding whether or not disproportionality of sanction makes a particular dismissal unfair, for the purposes of the unfair dismissal legislation, the tribunal is not entitled to substitute its own view for that of the employer. Instead, the tribunal has to arrive at a factual conclusion (based on its knowledge as an industrial jury) as to whether any reasonable employer would have dismissed in all the relevant circumstances. If the tribunal’s factual conclusion is that even a small minority of reasonable employers would have dismissed, the tribunal must decide that the dismissal is not an unfair dismissal (within the meaning of the unfair dismissal legislation).

64. However, in considering whether a claimant has lost his legal right to notice pay because of his misconduct, the tribunal is required to take a more interventionist role. In deciding whether an allegation of gross misconduct or of generally repudiatory conduct is made out, the tribunal has to decide for itself what actually happened (as distinct from deciding whether an employer had reasonable grounds for that employer’s belief as to what happened).

65. Furthermore, in the present context, we are not concerned with the subjective intentions of the employee. Instead, we are concerned as to whether the employee’s behaviour has been such as would lead a reasonable person to conclude that the employee is repudiating the contract.

66. It is an implied term of every contract of employment that neither party will, without reasonable or proper cause, behave in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Some breaches of that implied term will constitute a repudiatory breach of contract (gross misconduct). Some breaches will fall short of constituting a repudiatory breach of contract. In order to ascertain whether or not a particular breach is, or is not, a repudiatory breach, one must turn to the general principles of contract law in relation to repudiatory conduct.

67. The term ‘gross misconduct’, in the sense in which that term is used at common law, has never been defined in legislation. Instead, the scope of that concept has emerged from the case law.

68. That case law has been developing at least since the nineteenth century, and has produced a bewildering welter of individual instances (many of them affected by the social mores of the time when the relevant case was decided). From much of that case law, it is difficult to discern any overall guiding principles.

69. However, in Neary v Dean of Westminster [1999] IRLR 288, Lord Jauncey of Tullichettle analysed the case law on common law gross misconduct. At paragraph 22 of his judgment he concluded, in the context of a case in which it was being alleged that the claimant had breached an implied ‘trust and confidence’ term of the employment contract, that there will not be gross misconduct (justifying dismissal) at common law unless the conduct of the relevant employee has undermined the trust and confidence between an employer and employee to such an extent that the employer should not longer be required to retain the employee in his employment.

70. Lord Jauncey made it clear that he regarded gross misconduct as necessarily involving a repudiatory breach of the contract of employment, when he commented (at paragraph 20 of the judgment) as follows:-

“The question of whether there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed ... .”

Therefore, in determining whether gross misconduct at common law has occurred, the acid test now is whether or not the relevant employee, through his behaviour, is to be regarded as having engaged in contractually repudiatory conduct. So, in essence, gross misconduct has ceased to be an exotic and distinct species of termination all on its own. Instead, the concept of gross misconduct is now recognised as being merely an aspect of the overall law of contractual repudiation.

71. The implications are as follows:-

(1) In deciding whether particular conduct constitutes gross misconduct at common law, which would entitle the employer to summarily dismiss, it may well be important to look at how reprehensible the conduct is.

(2) It may also be relevant to consider whether, and to what extent, the conduct has actually undermined trust and confidence between the employer and employee.

(3) However, in the end, the acid test is whether or not the relevant conduct, objectively judged, demonstrated an intention on the part of the claimant to repudiate his contract of employment, or constituted a fundamental breach of contract.

(4) In considering that matter, it will be important to consider the relationship between the relevant default (on the part of the employee) and the purpose of the contract in general.

Our conclusions on the Mullan notice pay claim

72. Mr Mullan did not take active steps to prevent Mr Hughes from using the relevant unapproved and unsafe practice (regarding the use of the crowbar). So he condoned a practice which was inherently unsafe, and which did cause an accident. Furthermore, during the investigatory and disciplinary process, Mr Mullan did not admit that he had known what Mr Hughes was doing.

73. In our view, both of those matters have to be considered within the context of the claimant’s role as a foreman (and, in that capacity, the eyes and ears of the company and any particular site). Having done so, we have concluded that the relevant behaviours, taken together, have to be regarded as constituting a fundamental breach of Mr Mullan’s contract of employment. Therefore, the employer was entitled to dismiss the claimant without notice.

74. We have arrived at that conclusion with no enthusiasm whatsoever, Mr Mullan had a lengthy service record with the employer. He made a mistake for which he has paid dearly (by losing his job). Nobody associated with this accident ever expected or intended any harm to befall anybody. Against that background, we all consider it to be a matter of considerable regret that the claimant was not entitled to any notice or any pay in lieu of notice. However, our obligation is to apply the law, as we understand it, to the facts as we find them.

Our conclusions on Mr Hughes’ notice pay application

75. Mr Hughes adopted an unapproved and inherently unsafe practice, when he decided to keep the gates closed by using a crowbar.

76. In adopting that practice, Mr Hughes did not breach any written rule, or any written company policy or procedure. Therefore, the employer did not have a contractual termination entitlement in relation to the relevant misconduct of Mr Hughes.

77. In adopting the relevant practice, Mr Hughes never intended or expected that any harm would occur to anybody. He was not in breach of any health and safety rule. He had no management responsibilities and, in his role, would always be supervised. He was subject to the supervision of his foreman. In adopting the relevant practice, he was not acting in defiance of his foreman. After very lengthy service with the employer, he was due to leave within a short number of months. During his employment with the company, he had carried out a variety of roles. In terms of Northern Ireland building enterprises, this was a relatively large company. It could have re-deployed Mr Hughes to a role which did not constitute pile-driving activities, if it had chosen to do so.

78. Against that background, and having had regard to the overall context, we are satisfied that the relevant misbehaviour was not repudiatory conduct.

79. Accordingly, the employer is in breach of its Article 118 (‘Rights of employer and employee to minimum notice’) obligations in respect of Mr Hughes.

Amounts

80. The parties were in agreement as to the method by which any entitlement to notice pay should be calculated. The agreed basis of calculation is as follows:-

(1) First, calculate the aggregate amount of notice pay to which the claimant would have been entitled over a period of 12 weeks if notice had been given.

(2) Then, deduct any earnings which the claimant received in respect of any work carried out for another employer during the relevant period.

(3) Also deduct the amount of any social security benefits received by the claimant in respect of the notice period. It was agreed that the notice period is 12 weeks beginning upon the date of termination of employment.

81. On that basis, Mr Hughes, is entitled to the sum of £1,743 in respect of notice pay. This consists of 12 weeks’ notice pay, calculated on the basis of net pay of £315, less £169.75 per week in social security benefits, (leaving a balance of £145.25).

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

Chairman:

Date and place of hearing: 26 - 27 May 2009; and 2 - 3 July 2009, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mullan v Paul Joseph Hughes [2009] NIIT 1402_08IT (12 August 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1402_08IT.html Cite as: [2009] NIIT 1402_08IT, [2009] NIIT 1402_8IT

Industrial Tribunals Northern Ireland Decisions