Brown v Down District Council [2013] NIIT 01336

THE INDUSTRIAL TRIBUNALS

CASE REF: 1336/12

CLAIMANT: Stephen Brown

RESPONDENT: Down District Council

DECISION

The unanimous decision of the tribunal is that all claims are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr J Welsh

Mr J Smyth

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Tughans, Solicitors.

Background facts

1. The claimant was an employee of the respondent since 1998 and was latterly engaged as a toilet attendant.

2. The claimant had experienced what could fairly be described as an unusual employment relationship with the respondent. He had, for example, lodged four grievances with the respondent in the latter half of 2011. Since 2001 he had lodged some eight tribunal claims against the respondent, not counting the present claim. The first two tribunal claims were settled by the Council. The next five tribunal claims were withdrawn by the claimant. The tribunal claim immediately preceding the present claim was conciliated. The claimant had also been involved in a number of work-related and road traffic accidents which he described as ‘no fault accidents’.

3. On 12 March 2012, the claimant had contacted a Human Resources Assistant employed by the respondent. There is a dispute about the content of that telephone conversation. The assistant stated to the respondent that the claimant had complained about a manager who he alleged had been checking CCTV pictures of the claimant filling a bin while he had been on sick leave. She reported that the claimant had said that if he had caught anyone spying on him ‘it would be the last time they saw him’. The claimant did not deny that he was concerned about the actions of the manager and that that was the subject of the telephone call. However he denied issuing a threat in the alleged terms, or at all.

4. What is not in dispute is that, on the same day, ie 12 March 2012, the claimant telephoned the solicitor who was, at that stage, acting for the respondent in the tribunal claim which immediately preceded the present claim. During that call, and the content of this call is not disputed by the claimant, the claimant said:-

“People will end up getting killed.”

“The way I feel at the minute towards your client I want to execute them.”

“There is going to be a busy day at Roselawn because that is the way I am going, I am just going to go off on a spree here.”

“I just feel these people need to be executed.”

“Now the way I feel at the minute I need to kill these people, I just do.”

“I think, the way I feel at the minute, I think the only thing that will keep me right at the minute is to see all your clients lying dead.”

5. The claimant was reported to the PSNI. He was arrested and remanded in Maghaberry Prison without bail.

6. A disciplinary hearing to determine a charge of gross misconduct was held by the respondent while the claimant was detained in Maghaberry Prison with no definite release date. The claimant was notified of the hearing and advised that if he was unable to attend, he should submit representations in writing or should nominate a representative The claimant did not participate in that disciplinary hearing by writing or by representative. The claimant was dismissed for gross misconduct. An appeal hearing, chaired by an LRA arbitrator, who sat with a trade union and management member, confirmed that dismissal.

7. The claimant lodged the present claim to this tribunal. He argues, in brief, that he had been unfairly dismissed; that he had been dismissed for an impermissible reason (that it had been caused by the assertion of statutory or contractual rights, his grievances or his tribunal claim); and that the Disability Discrimination Act 1995 had been breached, in that no reasonable adjustment had been offered as an alternative to the investigation procedure, the disciplinary procedure or the actual dismissal and that he had been victimised and harassed by the investigation and disciplinary procedure.

The issues

8. The claim was subject to a detailed case-management procedure in which the claimant was fully and actively involved. The issues to be determined were settled and recorded as follows:-

“(1) Was the claimant unfairly dismissed by the respondent in breach of Article 126 of the Employment Rights (Northern Ireland) Order 1996?

(2) Was the claimant dismissed by the respondent for a fair reason (namely gross misconduct which was found by the respondent to be the claimant having threatened to kill members of the respondent’s staff) as defined by Section 130 of the ERO?

(3) Did the respondent act unfairly in deciding to dismiss the claimant for alleged gross misconduct by:-

(i) failing to investigate the alleged misconduct fully;

(ii) failing to postpone the disciplinary process pending determination of any outstanding grievances (there being a dispute as to whether there were any outstanding grievances);

(iii) failing to postpone the disciplinary hearing to enable the claimant to attend the hearing;

(iv) denying the claimant the right to be accompanied at the hearing or to put forward his case;

(v) using the LRA’s Code of Practice rather than the respondent’s own disciplinary and dismissal procedure;

(vi) failing to take into account the medical evidence on behalf of the claimant.

(4) Did the respondent act reasonably in all the circumstances in deciding to dismiss the claimant?

(5) Was the sanction of dismissal within the band of reasonable responses open to the respondent in response to the allegations of gross misconduct against the claimant?

(6) Was the real reason for the claimant’s dismissal that he had asserted statutory and contractual rights to overtime pay in circumstances where three months’ notice of stopping such payments had not been given?

(7) Was the claimant’s dismissal in itself a failure on the part of the respondent to make a reasonable adjustment under the provision of the Disability Discrimination Act 1995?

(8) Whether the alleged failure of the respondent to use its own disciplinary and dismissal procedure amounted to bullying and harassment of the claimant under the DDA?

(9) Whether the claimant’s dismissal amounted to unlawful victimisation for having brought a previous claim of disability discrimination?

(10) Whether the respondent complied with the statutory disciplinary and dismissal procedure in light of the fact that the claimant was in prison?

(11) If the respondent did not comply with the statutory disciplinary and dismissal procedure and is the claimant is entitled to a finding of automatically unfair dismissal should any compensation be reduced on the basis that the outcome would not have been any different had such a breach of process not occurred?”

The hearing

9. The hearing was held on Monday 22 April 2013; Tuesday 23 April 2013; and Wednesday 24 April 2013. In according with case-management directions, the first day was a reading day with the panel reading witness statements which had been exchanged by the parties in advance and which were, in written form, the evidence-in-chief of each witness. The panel also read the documentation to which it was directed in the witness statements. The parties had supplied voluminous documentation comprising three Lever Arch folders and a separate folder containing the exchanged witness statements.

10. At the commencement of the hearing on Tuesday 23 April 2013, the Vice President advised the parties that this was a statutory tribunal with a limited focus, ie a focus on the proper statutory claims currently before it. It was a not a free ranging public inquiry conducting an historical review of the relationship, in employment terms, between the claimant and the respondent over a period of many years. Parties would be obliged to focus on the relevant issues and would not be allowed to stray from them.

11. It was emphasised to the parties that the tribunal would not be re-running previous tribunal cases or re-running grievance procedures. The parties were advised that, in essence, the issues to be determined by the tribunal centred upon the fairness or unfairness of the procedure relating to the dismissal, the dismissal itself and the reason or reasons for that dismissal. The tribunal would therefore focus on the dismissal and on how and why that dismissal came about.

12. At the start of the hearing proper on Tuesday 23 April 2013, the Vice President advised the parties accordingly that many of the witness statements which had been exchanged and filed on behalf of the respondent appeared to be extraneous to the issues properly before the tribunal. They appeared to be a reaction to the claimant’s witness statement and to the claimant’s protracted and detailed correspondence in relation to this case. At the end of the cross-examination and re-examination of the claimant, the respondent advised the tribunal, although the tribunal stressed that it was the respondent’s decision, that only three witnesses would be called on behalf of the respondent, ie Mr Canice O’Rourke, who heard the disciplinary hearing, Ms Catrina Miskelly, a Human Resources Officer for the respondent and Dr Carol Ackah, who was the LRA appointed arbitrator who chaired the appeal hearing. The parties were then advised that the other witness statements, which would not be sworn, would not be regarded as evidence and would be disregarded.

Relevant law

Unfair dismissal

13. Tribunals must approach with particular care any claim that includes not just a claim of unfair dismissal but, in addition a claim of unlawful discrimination. Further problems can occur where there may be an issue of contributory conduct.

In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-

“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

14. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

15. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principal reason) for the dismissal and

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) a reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

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

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

16. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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, it must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, 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. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

17. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

18. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

19. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

20. In Harvey on Industrial Relations and Employment Law (Division 1 – 195) it provides that:-

“In a suitable case, the employer may rely upon breakdown in trust and confidence as the substantial reason justifying the dismissal.”

21. Under Article 135 of the 1996 Order, an employee shall be regarded as unfairly dismissed if the reason or principal reason for the dismissal was the assertion of a statutory right.

Victimisation

22. As the Court of Appeal stated in Rice v McEvoy [2011] NICA 9 when it remitted a claim of unlawful victimisation for complete re-hearing:-

“In order to establish that discrimination by way of victimisation has occurred –

(a) circumstances relevant for the purposes of the provision of the Order must apply;

(b) the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (‘the less favourable treatment issue’); and

(c) he must have done so by reason of the fact that the person victimised has done one of the protected acts (‘the reason why issue’).”

23. In Paragraph 33 of its decision, the Court stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that a protected act had a significant influence on the outcome, victimisation is established. (See Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576.) The question is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test.”

24. The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation. A claimant in a discrimination claim must prove facts upon which the tribunal could reasonably infer, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant (in this case unlawfully victimised the claimant). In other words, the claimant must establish a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.

25. Reasonable adjustments duty

Section 4A of the Act provides:-

“(1) Where –

(a) any provision, criterion or practice applied by or on behalf of an employer …

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

26. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. The EAT in Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.

27. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

“The paragraph in the DRC’s Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”

28. The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.

Burden of proof

29. The statutory changes, introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the GB Court of Appeal in the case of Igen v Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh and Others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

“For the purposes of the present case the first question that the judge should have articulated was, ‘have the plaintiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’”

Those guidelines were revisited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007. At Paragraph 12 in that decision, the court stated:-

“I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better.”

The court went on to say at Paragraph 54 that:-

“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her.”

At Paragraph 56, the court continued:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

At Paragraph 57, the court continued:-

“‘Could conclude’ in Section 63a(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.”

30. In accordance with the small decision outlined above, this decision will deal separately with the claim of unfair dismissal and the other claims which, although they relate to the dismissal and the reason for the dismissal, raise different issues of law and are to be approached differently by the tribunal.

Unfair dismissal

31. The tribunal is satisfied that the respondent has established that the reason for the dismissal was the misconduct of the claimant on 12 March 2012. The exact findings of the tribunal in this respect will appear in more detail later in this decision.

32. For the purposes of the 1996 Order, the tribunal has three issues to look at in relation to the claim for unfair dismissal simpliciter. Firstly, the tribunal must consider whether or not the respondent complied with the statutory dismissal procedure set out in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’). Secondly, and separately from that issue of statutory procedure, the tribunal must consider whether or not the procedure adopted by the respondent was fair or unfair. Finally, the tribunal must consider whether or not the decision to dismiss was in all the circumstances fair and, if not, whether or not a different and lesser penalty would have been appropriate.

33. In relation to the statutory dismissal procedure, the claimant alleges that the respondent was in breach of this procedure in that the disciplinary meeting held on 18 April 2012 had been held without the claimant’s attendance or participation.

34. It is not in dispute that the claimant had been held without bail in Maghaberry Prison from shortly after 12 March 2012 and that his incarceration continued at the time of the disciplinary hearing on 18 April 2012. It was also clear that the respondent knew on 18 April 2012 that that was the case. However it is equally clear, and the tribunal accepts, that Ms Miskelly wrote to the claimant on 15 March 2012 to advise him that allegations of gross misconduct against him in relation to his actions on 12 March 2012 would be investigated. It is also clear and the tribunal accepts that the respondent wrote again to the claimant on 23 March 2012 to again provide him with an opportunity to respond to the investigation. The respondent’s evidence, which is not rebutted and which the tribunal accepts, was that both letters were sent to the claimant’s home address and also to Maghaberry Prison. It is also clear that Ms Miskelly wrote to the claimant on 11 April 2012 to notify him that the disciplinary hearing was scheduled to take place on 18 April 2012 some five weeks after the incident on 12 March 2012. That letter set out in clear terms two allegations of gross misconduct. The first allegation related to his conversation with the Council’s solicitor and the second allegation related to his conversation with the Human Resources Assistant. The letter stated that the respondent understood that it may have been difficult for the claimant to attend the hearing on 18 April 2012 but it positively invited a written submission or the attendance of a colleague or trade union representative to act on his behalf. The letter, again in clear terms, strongly advised the claimant to forward any evidence or to arrange any representation that he considered appropriate. He was also advised that if he were found to be guilty of gross misconduct his employment could be summarily terminated.

35. No acknowledgement or response was received from the claimant, or on behalf of the claimant, to these three letters. The letters clearly related to the initial investigation and then to the disciplinary hearing. The claimant could and should have responded in writing or through a representative. The claimant sought to argue before the tribunal that the censorship regime in Maghaberry Prison meant that correspondence was not received by an inmate for one week. That surprising proposition was rapidly altered by the claimant in his evidence under cross-examination to ‘up to five days’ and equally rapidly altered to ‘10 days’ at the relevant time when the claimant was notified of the disciplinary hearing, and then to ‘at least an hour’.

36. The tribunal heard no independent evidence in relation to the impact of the prison censorship regime on the potential delay in receiving external post to an inmate at Maghaberry and in that inmate sending out external post. However the tribunal considers it inherently unlikely that any delay, which was doubtless of some length, would have been of the length initially indicated by the claimant. The tribunal does not accept the claimant’s evidence, confused as it was, in this regard. The tribunal concludes that any delay would have been brief and would not have had any significant impact on the claimant’s ability to respond to the respondent’s correspondence. It is, in any event, clear that delays in correspondence as a result of the censorship procedure were not raised by the claimant in relation to the disciplinary hearing.

37. The 2003 Order requires that the claimant should be notified of the disciplinary hearing. It does not require that an agreed date should be arrived at for the disciplinary hearing and it does not require that an employer should wait indefinitely to fix a disciplinary hearing where the employee is, for whatever reason, unable or unwilling to attend. The onus is placed on the claimant to ‘take all reasonable steps to attend the meeting’. In the circumstances, at the end of March 2012 and at the beginning of April 2012, the employer would not and could not have been aware of when the claimant might ultimately become available. That would depend on a range of factors; but ultimately on any decision by the PPS in relation to a prosecution, the timing of any prosecution, the decision of any Court in relation to bail, on the eventual disposition of any criminal charge and particularly on the claimant’s willingness to engage in the process. The LRA Code provides at Paragraph 19 that an employee who cannot attend a meeting for good cause should notify the employer in advance. If the employee cannot attend for good reasons, the employer should re-arrange the meeting. If a representative or companion cannot attend, the meeting should be re-arranged for a date no more than five days after the date originally proposed by the employer. There is no requirement for a protracted procedure and the onus is placed firmly on the employee to engage and to request a short postponement. The claimant, in the present case, did neither and the tribunal concludes that he could have done so.

38. The tribunal is content that the respondent in this instance complied fully with the statutory dismissal procedure. The dismissal was therefore not automatically unfair. If the tribunal had reached a different conclusion on this point, it would have concluded that the result would have been no different if the disciplinary meeting had been delayed, at that stage indefinitely, to a date on which the claimant could have attended. The claimant had a full opportunity at the appeal stage and he did appear with the assistance of Unite. The circumstances of the dismissal were such, and the nature of the misconduct so clear, that the dismissal was undoubtedly fair.

39. Turning to the question of procedural fairness as a question separate from compliance or non-compliance with the statutory dismissal procedure, the respondent conducted what appears to the tribunal to have been a reasonable investigation of the events on 12 March 2013. The claimant failed to respond to two letters about the investigation process, or to assist that process in any way.

Only one factual incident was eventually challenged by the claimant. The content of the claimant’s telephone call with the respondent’s solicitor, and the clear threats made in that call by the claimant, were not disputed. The claimant however subsequently disputed the allegation of a threat made to the Human Resources Assistant on the same day, 12 March 2012. There is no reason why that Human Resources Assistant would have invented that threat. The threat was consistent with the claimant’s admitted concern about a manager’s actions. It was also consistent with the threats, which the claimant admits that he made shortly afterwards, to the respondent’s solicitor. The tribunal concludes that the conclusion in the investigation report and subsequently in the disciplinary process that he had also issued a threat to the Human Resources Assistant was a reasonable and fair conclusion.

The claimant next alleges that the holding of the disciplinary hearing in these circumstances was rushed and unfair, in that he was unable to attend or to respond to the charges.

40. The tribunal has considered the claimant’s submission that the three letters sent by the respondent were delayed by the censorship procedure and that he was unable to respond on that ground. It has rejected that submission. The claimant also alleged that he was so confused at the time that he would have been unable, in any event, to respond to the correspondence. He argued that he was not in a medical condition to reply to any of the three letters or to make any meaningful response to the disciplinary charges or indeed to the investigation process.

41. The claimant was referred, in the course of his cross-examination, to a form which he had completed in relation to his membership of the Superannuation Scheme organised by NISGOSC. That was a detailed form in which he provided additional information in relation to his request for an ill-health examination and eventual retirement on benefits. That form was completed in prison on 13 April 2012. It was therefore completed immediately after the disciplinary letter issued on 11 April 2012 and before the disciplinary hearing took place on 18 April 2012. It was signed by the claimant. It was marked as received by the respondent on 16 April 2012. As an aside, the tribunal notes that the very quick turnaround of this correspondence further weakens the claimant’s submission that letters in and out of the prison took extensive periods of time to progress through the censorship system. However, turning to the issue currently on point, the claimant begins his response by saying:-

“I am currently in prison.”

He continues to deal with the subject-matter of the disciplinary case, ie he states:-

“The employer has alleged a threat to kill was made.”

In this communication with NILGOSC, the claimant argued that this was due to what he describes as his PTSD and generally he attributed it to what he describes as non-fault road traffic accidents and actions on the part of the employer in relation to the Managing Attendance Programme and the grievance procedure.

When it was put to the claimant that his earlier evidence, on oath, that he was medically incapable of responding to the three letters from the respondent, ie two letters in relation to the investigation process and one charge letter in relation to the disciplinary process, was inherently not credible as a result of his obvious ability to respond in some detail to NISGOSC at exactly the same time, his response was a response which he repeated at different stages in the cross-examination:-

“You don’t understand my condition.”

42. The tribunal has already decided that the claimant’s evidence in relation to time delays in prison correspondence was not worthy of belief. The tribunal also determines that the claimant’s evidence in relation to medical inability to respond to such correspondence was incapable of belief. To suggest, as the claimant did, that he was not capable of responding to the investigation and disciplinary letters while simultaneously being capable of responding on the exactly the same subject to NISGOSC is patently absurd. Furthermore, the claimant would have had access at exactly this time to legal assistance provided by a solicitor and counsel in relation to the criminal charge. This was a charge covering exactly the same matter as the disciplinary charge. He could, if he had wished, have asked his legal representatives for advice or to intervene on his behalf.

43. The claimant dealt with the issue of legal advice being available to him at the time of the disciplinary meeting by alleging that there was ‘jiggery pokery’ going on and that he had sacked his solicitor and counsel. It is not entirely clear from his evidence whether this happened once or twice but it certainly, on his evidence, happened at least once. None of this, in any event, explains why the claimant was not able to engage the services of his trade union or the assistance of a colleague by writing to them either directly or through the services of his solicitor. It does not explain the claimant’s failure to write directly to the respondent. The disciplinary charge clearly invites a written response or a representation and the claimant was clearly capable of providing this. The tribunal does not accept that the respondent acted in any way unfairly in relation to the disciplinary hearing. The claimant was given a full and adequate opportunity to give his side of the case. A reasonable employer could not be expected, in such circumstances, where a clear and detailed threat to kill fellow employees had been received, to delay indefinitely its consideration of the matter. The respondent’s evidence, which the tribunal accepts, was that it had to balance its duty of care to the claimant with its duty of care to other employees and it had to ensure their safety. The claimant did not respond to its three letters and, in particular, did not request a postponement for a brief period to enable some form of representation to be arranged or to allow for his release on bail.

44. The claimant also alleges, and he regards this as the core of his case, that the respondent acted unfairly in that it did not secure further medical evidence either before or at the disciplinary hearing. In the course of the tribunal hearing, it became clear that the report from Dr Jenkinson, to which copious reference was made by both parties, was, at the time of the threats to kill on 12 March 2012, only six days old. The claimant nevertheless alleged that no reasonable employer could have relied on such a report and that it was necessary for any employer to obtain a further specific medical report about his actions on 12 March 2012.

45. The tribunal does not agree. The respondent, in these circumstances, was acting as an employer. It had to act fairly in the role of an employer. It had received clear evidence of a specific and repeated threat to kill from an individual employee. That employee made no secret of the fact that he regarded himself as mentally unstable and that he felt that he was suffering from PTSD. There is nothing in any of that which required a reasonable employer to indefinitely delay proceedings of its own volition and to seek a further report from Dr Jenkinson or elsewhere to supplement a report which was only six days old and which dealt specifically with the claimant’s medical and mental condition. The actions of the respondent must be judged against the objective standards of the reasonable employer.

46. The claimant also focused on the fact that the respondent had not taken into account a medical report from a Dr Bownes which was completed on 24 August 2012 and which was presumably received by the claimant at some stage thereafter. That report had been compiled on the instructions of the claimant’s then solicitors in relation to his criminal charge. That report post-dated both the disciplinary hearing and the appeal hearing and no unfairness can be alleged on the basis of the non-consideration of that report, even if the contents of that report had been relevant as alleged by the claimant. The decision will return to that point in due course.

47. The claimant also alleged that the appeal panel was biased and was therefore unfair. He alleged that the chairperson, Dr Ackah, had been paid by the respondent and was therefore not to be trusted. The tribunal utterly dismisses this allegation. Dr Ackah acted in this role in accordance with the employer’s procedures. Her appointment and the appointment of the two members, including the trade union member, was in agreement with the claimant and the claimant’s then representative from Unite. No objection to their appointment was raised at the time.

48. Because of security concerns expressed by the respondent, the appeal panel hearing took an unusual format. The respondent’s submission was heard separately to the submission from the claimant and points made on behalf of one body were relayed by the panel to the other. The tribunal regards this approach as unusual but, in the circumstances, it was entirely understandable. Furthermore, the tribunal concludes that the procedure did not in any way impinge on the fairness of the panel decision.

49. The claimant alleged that he had been on medical leave at the time of the disciplinary hearing and that the procedure had therefore not been followed. The panel, has heard the evidence from both sides, and concludes that no medical certificate had been received by the respondent at the relevant time. One was received later and was retrospective. The respondent cannot be criticised for failing to consider a medical certificate it has not yet received. The claimant was not certified sick at the relevant time. In any event, the fact that an individual is certified as unfit for work is not a basis for concluding that that person is automatically exempt from any form of investigation or disciplinary procedure. Such a conclusion would be absurd.

50. The claimant’s evidence and his submission on what he alleged to be the unfairness of the dismissal was somewhat confused. At certain points he appeared clearly to be stating, in response to cross-examination, that because he suffered from PTSD on his evidence, and on the basis of the Council’s concession, threatening to kill his fellow employees was simply not a disciplinary offence and that he could not be disciplined. He was exempt from discipline. Misconduct could not have occurred. On other occasions, the claimant appeared not to be arguing that this was the position, but it is not entirely clear what he was arguing. It may have been that he was submitting that the respondent should have decided that while misconduct was potentially an issue, it should have disregarded it or it should have treated the matter in a different way.

51. In any event, and it is amazing that the tribunal has to state this in plain terms, if an employer receives evidence, which is largely undisputed, of a clear and repeated threat from an employee to kill fellow employees, the fact that the employee making the threat is suffering from PTSD does not provide a ‘get out of jail free card’ in relation to misconduct proceedings. The respondent was acting as an employer. It was not acting as a criminal prosecutor or criminal court. The impact of any medical condition on criminal charges is a separate issue and one that does not concern this tribunal. The decision which was apparently taken in this case to discontinue criminal charges against the claimant is one for the PPS and the PSNI. The decision was based on a range of factors and considerations, none of which concern us.

52. The claimant appeared to be convinced that the end of the criminal prosecution was determinative of this claim to this tribunal. He submitted that Dr Bownes’ report was ‘good enough’ for the police, ‘good enough’ for the PPS and ‘good enough’ for the criminal court. He asked this tribunal to accept that it was ‘good enough’ for us.

53. Leaving aside the timing of Dr Bownes’ report and leaving aside, for the purposes of this point, the limited jurisdiction of this tribunal in relation to unfair dismissal, the tribunal notes that Dr Bownes’ report, prepared on his behalf, states:-

“However I found no evidence from Mr Brown’s presentation at the current interview or from the information he disclosed of any mental impairment or mental illness symptoms of a nature that would fulfil the criteria defined for his treatment under the Mental Health Order and in my opinion, Mr Brown is currently fit [tribunal’s emphasis] to plead to the charges before him in a court of law.”

Although the issue is irrelevant, the tribunal has therefore heard no independent or convincing evidence in relation to the PPS decision to discontinue criminal proceedings. However, it is certainly not the case, as the claimant has suggested, that his PTSD exempted him in some way from criminal prosecution. The medical report, from which the claimant apparently draws comfort, described him as fit to plead.

54. The tribunal is considering an issue, ie the case of employee misconduct, which is entirely different from a criminal charge. As has been indicated above, the respondent in this case was acting as an employer. It had to determine the issue of misconduct in the employment context while balancing the interests of the claimant and its duty of care towards the claimant with its duty of care to those other employees. It had to, and did, consider the medical evidence available to it.

55. In understanding the position in which the respondent found itself, it is of some assistance to note that the report of Dr Bownes, which was prepared on the claimant’s behalf and on which he repeatedly tries to rely, refers to his ’egocentric, adversarial and uncompromising style of thinking and maladaptive strategies for coping with demanding and frustrating situations and conflict with other people’.

56. The claimant asserts that the incidents on 12 March 2013 were the fault of the respondent. On his argument, if his employment history had been different and, in particular, if his grievances had been dealt with differently, the incidents on 12 March 2013 would not have happened at all.

57. The fact that the claimant confidently and repeatedly asserted that this was the case is nothing to the point. There is no evidence to support this proposition. The tribunal dismisses the argument as without substance.

58. If an employee makes a clear threat to kill other employees, a decision to dismiss that employee is, to put it mildly, a decision within the band of reasonable responses which an employee could properly make. It had conducted a reasonable investigation, leading to a reasonable belief in the claimant’s guilt. A fair procedure had been adopted and the claimant had been given a full opportunity to respond to the charges of misconduct.

59. The tribunal therefore concludes that the decision to dismiss the claimant was fair and that a reasonable employer was not obliged to impose an alternative decision or lesser penalty. The misconduct of the claimant was such that summary dismissal was, in reality, the only option available to the respondent as a reasonable employer.

60. The evidence of the respondent’s witnesses was clear and convincing. They had based their decision solely on misconduct and there is no evidence that the assertion of statutory or contractual rights had formed part of their decision.

Discrimination claims

61. Turning to the remaining claims, the first category of claims; ie the other remaining claims other than the claim alleging a lack of a reasonable adjustment, relate to the reason for the dismissal of the claimant. The claimant alleges that the dismissal was for an impermissible reason and not for misconduct. That impermissible reason is alleged to have been victimisation because of the claimant’s grievances or because of his tribunal claims in relation to disability.

62. The claimant had lodged claims of disability discrimination before the tribunal and had alleged disability discrimination. These actions were capable of being regarded of protected acts.

63. The claimant had threatened, in explicit terms, to kill his fellow employees. That is not in dispute. The claimant was dismissed and the dismissal was confirmed on appeal.

64. The tribunal has, first, to look at the burden of proof. The claimant has to establish evidence, or evidence has to be established, upon which a reasonable tribunal could properly infer unlawful discrimination, or unlawful victimisation, before the burden of proof passes to the respondent.

65. The tribunal has considered the nature of the claimant’s actions on 12 March 2012. The contents of the telephone call to the respondent’s solicitor were not in dispute and as indicated above, on more than one occasion, contained graphic and serious threats to kill. The content of the telephone call earlier on the same date between the claimant and the Human Resources Assistant employed by the respondent is in dispute. However the tribunal concludes that there was no reason for the Human Resources Assistant to have made up a false account of that telephone conversation and to have invented the threat against a manager employed by the respondent. That threat, as recounted by the Human Resources Assistant, is also consistent with and precedes the undisputed threats to kill fellow employees which were made on the same day. The tribunal therefore concludes on the balance of probabilities that the threat recounted by the Human Resources Assistant was actually made by the claimant.

66. The tribunal has also carefully observed Mr O’Rourke and Ms Miskelly as they gave evidence and has carefully considered the content of their witness statements and their responses during cross-examination. The tribunal notes their clear and repeated evidence that the decision of the respondent to dismiss the claimant was based solely on the actions of the claimant on 12 March 2012 and that it was based on no other factor. That evidence remained unshaken and was convincing. No evidence was produced to the contrary.

67. Given the nature of the claimant’s conduct on 12 March 2012, the tribunal is satisfied that no real alternative to the investigation of such matters, the disciplinary procedure and the dismissal of the claimant was open to the respondent.

68. There is no evidence of a sinister or impermissible motive on the part of the respondent upon which the tribunal could reasonably infer unlawful discrimination or unlawful victimisation. There is no evidence that the dismissal had anything to do with what the claimant regarded as the assertion of contractual or statutory right. The actions of the respondent and, in particular, the manner in which they conducted the investigation, disciplinary and dismissal process were entirely reasonable and entirely predictable. In fact, if the respondent had failed to have acted as it did, that failure would have been startling and would have called for an explanation. The simple fact that disability discrimination claims had been lodged or that claims had been made, simply raises the possibility of unlawful discrimination. Without more, it is not enough to shift the onus of proof to the respondent.

69. The tribunal therefore concludes that the onus of proof has not shifted to the respondent in this case and that the claims of unlawful discrimination or unlawful victimisation fail. If the tribunal is wrong in this and if it had concluded that the onus of proof has shifted to the respondent, the tribunal would, in any event, have concluded that the respondent has produced a full and adequate explanation of its actions in this regard and that the dismissal of the claimant and the procedure leading up to that dismissal was entirely related to the claimant’s misconduct and not to any other reason, including his claim of disability discrimination or the assertion of statutory rights.

70. Turning to the claimant’s allegation of a breach of the Disability Discrimination Act 1995 arising from an alleged failure to put in place a reasonable adjustment, the claims relates, again, to the procedure leading up to the dismissal and to the dismissal itself. For the reasons set out above, the procedure and the dismissal were not just reasonable but, in the view of this tribunal, were absolutely inevitable. There are no grounds upon which a tribunal, acting reasonably and properly, instructed as to the law, could infer unlawful discrimination in this regard. There was no alternative course of action open to the respondent by way of a reasonable adjustment. That claim is also dismissed.

71. the procedure relating to the investigation and to the disciplinary processes was, as indicated above, entirely fair. There is no evidence that it was in any way related to the claimant’s disability or to any other improper motive. The claim of unlawful harassment or bullying is therefore dismissed as being without foundation.

Vice President:

Date and place of hearing: 22 April 2013 (reading day)

23 – 24 April 2013, 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 >> Brown v Down District Council [2013] NIIT 01336_12IT (03 May 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1336_12IT.html Cite as: [2013] NIIT 1336_12IT, [2013] NIIT 01336_12IT

Industrial Tribunals Northern Ireland Decisions