Toner v Randox Laboratories Ltd [2010] NIIT 6873

THE INDUSTRIAL TRIBUNALS

CASE REF: 6873/09

CLAIMANT: Kerri Rebecca Toner

RESPONDENT: Randox Laboratories Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and her claim to this tribunal is therefore dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr I Lindsay

Mr R Lowden

Appearances:

The claimant appeared in person.

The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Tughans Solicitors.

Issues

1. The claimant’s claim was that she was unfairly dismissed. As dismissal was admitted by the respondent the issues for the tribunal were:

(a) What was the reason for the dismissal?

(b) Did it fall within one of the fair reasons outlined in the legislation?

(d) If the claimant was unfairly dismissed, should any compensation awarded be reduced due to her contributory conduct?

Sources of evidence

2. For the respondent the tribunal heard evidence from Coleen Finnegan, Anita Cannon, Linda Magee, Cathy Kirk and Claire Martin. The claimant gave evidence on her own behalf. An agreed bundle of documentation was produced and considered by the tribunal.

Findings of fact

3. The tribunal found the following facts relevant to the issues before it:

(1) The claimant was employed as a production operative by the respondent and worked for the respondent from 2 January 2007 until 20 July 2009 when she was dismissed summarily for gross misconduct. The respondent is a company which produces, amongst other things diagnostic kits for use in hospitals and laboratories.

(2) On 17 July 2009 the claimant was working on a production line with five others assembling diagnostic kits which comprised six different bottles of chemical reagents in each diagnostic kit. The work required the claimant and her colleagues to work closely together in unison to ensure that the kits were assembled correctly and in a timely fashion.

(3) Accuracy in packing diagnostic kits is of critical importance in this business given the safety implications for ultimate users if kits are incomplete or have the wrong combination of components. The respondent company operates in a tightly regulated industry requiring great accuracy. Whilst the respondent operates quality control procedures by checking and testing samples of batches of production, there is an onus on individual production operatives and their supervisors to ensure that kits are assembled accurately. In addition, if parts of kits (involving, for example, glass bottles) are dropped this can lead to health and safety risks for operatives working on the production line.

(4) Ms Finnegan reported the claimant to her supervisor because the claimant smelled strongly of alcohol and appeared to be working more slowly and had to take more toilet breaks than usual.

(5) The supervisor Ms Cannon and her manager assessed the claimant to be smelling strongly of alcohol and to be in such a state that she should be sent home immediately. The claimant was told that Human Resources would look into the matter on Monday 20 July 2009.

(6) On 20 July 2009 at 9am the claimant was called to a meeting with Ms Magee of HR and Mrs Cannon but within minutes the meeting was suspended because the claimant’s breath smelled strongly of alcohol. The claimant was suspended on full pay pending an investigation into the events of 17July and 20 July 2009.

(7) Investigatory meetings were held on 20 July 2009 with five of the claimant’s colleagues in relation to the claimant’s condition and behaviour on 17 and

20 July. Colleagues referred to the claimant’s unsteadiness on her feet whilst working on 17 July. The investigation was carried out by Ms Cannon the packing supervisor and Ms Magee the HR manager. The investigation also entailed a meeting with the claimant on 21 July.

(8) As a result of the investigation the decision was made to put the matter on a disciplinary footing. A letter of 21 July 2009 was given to the claimant advising her of the disciplinary hearing to be held on 22 July at 3pm. The letter outlined the allegation, enclosed the witness statements, the company rules and disciplinary procedure and the outcome of the investigation and made it clear to the claimant that she was at risk of dismissal for gross misconduct. The claimant was advised of her right to be accompanied.

(9) The respondent’s managers wanted to deal quickly with the claimant due to the serious nature of the allegations and because the claimant had been suspended from work.

(10) The disciplinary hearing took place on 22 July 2009. The claimant was accompanied by a friend and the claimant accepted at tribunal that she had a full opportunity to put her side of the case and to question any points made by the witnesses or the investigatory team. The disciplinary hearing was conducted by Ms Morrow accompanied by Ms Magee of HR.

(11) Ms Morrow produced a report which weighed up the evidence from the witnesses, the evidence from the claimant and considered the company rules. Ms Morrow decided to dismiss the claimant for gross misconduct because of the events which occurred on 17 and 20 July.

(12) The dismissal letter dated 24 July 2009 was sent to the claimant. It enclosed Ms Morrow’s report and advised the claimant that she was summarily dismissed for being under the influence of alcohol on two occasions. The letter notified the claimant of her right to appeal against the decision.

(13) The claimant by letter of 27 July 2009 exercised her right of appeal and an appeal hearing was arranged and notified to the claimant by letter of 29 July 2009.

(14) The appeal hearing took place on 3 August 2009 and was conducted by

Dr Claire Martin, the manufacturing manager in the company. The claimant accepted at tribunal that she had a full opportunity at the appeal hearing to put her side of the case and to challenge the decision. As a result of the appeal hearing Dr Martin conducted further investigations which involved taking statements from four members of staff in relation to the events of

17 and 20 July.

(15) Dr Martin weighed up the statements taken at the investigatory stage and the statements taken following the lodgement of the appeal. She also took into account the claimant’s case, weighed up the evidence before her and decided on a balance of probabilities that the claimant was guilty of the misconduct alleged. Dr Martin therefore upheld the decision of the disciplinary panel and her decision was communicated to the claimant by letter of 7 August 2009.

(16) The respondent’s Employee Handbook contains the company’s disciplinary and dismissal procedures and lists examples of gross misconduct which include the following:

“Drinking alcohol during working hours, being under the influence of alcohol/drugs and/or drug abuse”.

(17) It further states that gross misconduct offences:

“… will render you liable to summary dismissal (i.e. dismissal without notice and without previous warnings)”.

(18) The claimant had been on prescription medication and told her employer during the investigation that she was advised not to take alcohol with that medication. For this reason the claimant said that she did not take her medication when she went out on the night of Thursday 19 July. The claimant at one stage indicated that she consumed on that night three pints of Guinness, two vodkas and three Smirnoff Ice. The claimant also stated that she took her medication on the Friday morning.

(19) During the investigatory disciplinary and appeal process the claimant changed her account in several respects in relation to the events of the

17 and 20 July 2009. In contrast, the statements from the witnesses were not identical but were broadly in agreement that a strong smell of alcohol came from the claimant’s breath, that her behaviour was such that she appeared to be under the influence of alcohol and that this became worse as time wore on and she attended the toilet frequently. This led to a suspicion that she was actually drinking in work.

The Law

4. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

5. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

The “Burchell test” has been approved by the Court of Appeal in the cases of Post Office v Foley & HSBC Bank v Madden [2000] IRLR 827. This “range of reasonable responses” test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251.

6. The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

7. The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

Conclusions

8. The tribunal finds that the respondent complied with the statutory dismissal procedures. The Step 1 letter was the letter of 21 July 2009. The Step 2 meeting was the disciplinary meeting on 22 July 2009 and the respondent complied with Step 3 by advising the claimant of her right to appeal and holding a further meeting. Whilst the claimant received one day’s notice of the disciplinary hearing, we do not regard this as unreasonable, in this case, in relation to the statutory procedures.

9. We are satisfied that the relevant managers of the respondent believed the claimant to be guilty of the misconduct alleged and we are satisfied that such misconduct fell within the categories of gross misconduct in the respondent’s policies and rendered the claimant liable to summary dismissal.

10. We find that the employer acted within the band of reasonable responses in relation to the conduct of the investigation. Whilst another employer might have given a little more notice of the disciplinary hearing, we are satisfied that in this case, where the claimant was under suspension and given the nature of the allegations, the arranging of a disciplinary hearing at 24 hours notice was not outside the band of reasonable responses.

11. Given the critical importance of accuracy in packing on this production line, we are satisfied that summary dismissal was a reasonable sanction to impose in the circumstances of this case. Dr Martin gave very clear evidence about the importance of accuracy and the potentially grave consequences of defective testing kits being used by a hospital. We are therefore satisfied that it was within the band of reasonable response for this employer to sack the claimant having found her guilty of gross misconduct.

12. It was clear from the evidence that the respondent’s managers regarded the offence as serious and that it was compounded by the fact that the claimant appeared in work on the Monday again under the influence of alcohol.

13. The appeal was considered by a different manager and further investigations were conducted following points raised by the claimant. Dr Martin weighed up all the evidence in her possession before deciding on a balance of probabilities to uphold the decision of the disciplinary panel.

14. At tribunal the claimant put forward the case that she was not drinking in work and the fact that the respondents did not find her in the act of drinking in work meant that they could not find her guilty of being under the influence of alcohol. We are satisfied that the respondent had sufficient evidence upon which to conclude that the claimant was under the influence of alcohol and further that she might have been drinking in work.

15. As the tribunal made clear at the hearing our task was not to rehear the disciplinary process nor to decide whether or not the claimant actually was guilty of the offence alleged. Our task, rather, is to decide whether the employer acted within the band of reasonable responses as regards the conduct of the procedure and the penalty imposed. As stated above we are satisfied that the employer did act within the band of reasonable responses and the dismissal was therefore not unfair.

16. As we have found the dismissal to have been fair we do not need to determine the issue of contributory conduct.

17. The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 12 - 13 April 2010, 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 >> Toner v Randox Laboratories Ltd [2010] NIIT 6873_09IT (13 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6873_09IT.html Cite as: [2010] NIIT 6873_9IT, [2010] NIIT 6873_09IT

Industrial Tribunals Northern Ireland Decisions