Stanex v Randox Laboratories Limited Randox Laboratories Limited [2013] NIIT 00388

THE INDUSTRIAL TRIBUNALS

CASE REFS: 388/12

582/12

CLAIMANT: Colin Stanex

RESPONDENT: Randox Laboratories Limited

DECISION

The unanimous decision is that the tribunal dismisses the claimant’s claims for breach of contract, an unlawful deduction from wages, detriment by reason of making a protected disclosure and unfair dismissal by reason of having made a protected disclosure. The tribunal finds that the respondent unfairly dismissed the claimant and awards him compensation of £1,352.60.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr P Killen

Mr J Welsh

Appearances:

The claimant was represented by Mr Samuel Martins of the Employment Law Service.

The respondent was represented by Mr Jacques Algazy, of counsel, instructed by Elaine Torrens of Randox Laboratories Limited and Gerard Hyland, solicitor of Gerard Hyland Solicitors.

The Sources of Evidence

1. The tribunal heard evidence from the claimant and on his behalf from Mark Regan. The tribunal, on behalf of the respondent, heard evidence from Lauziata Christie, David Martin, Chris Henry, Michael McQuillan, Mark Bushe, Cathy Kirk, Pauline Armstrong, Linda Magee and Sonia Ferguson. The tribunal also received two bundles of documents amounting to 194 pages, a chronology, skeleton arguments from both parties, written closing submissions from the claimant, the witness statements and two bundles of authorities from the parties.

The Claim and the Defence

2. The claimant claimed that he was unfairly dismissed, because he made a protected disclosure and suffered a breach of contract and an unlawful deduction of wages. The respondent denied the claimant’s claims in their entirety.

The Issues

3. The agreed issues were as follows:-

Unfair Dismissal

(1) Was the dismissal of the claimant fair or unfair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996 and more particularly:-

1.1 Was the reason (or principal reason for dismissal);

(a) misconduct, which is the respondent’s principal case; or

(b) some other substantial reason, namely a breakdown in the relationship of trust and confidence, which is the respondent’s secondary case; or

(c) neither of the above but, as is the claimant’s case, a direct consequence of the claimant making a protected disclosure to Sonya Ferguson on or around 23 November 2011 that the respondent was misleading the public with blood test results for urine and blood that were not fit for purpose; thereby rendering the dismissal automatically unfair pursuant to Article 136A of the Employment Rights (Northern Ireland) Order 1996.

1.2 If the reason (or principal reason) was misconduct or a breakdown in trust and confidence, was the claimant’s dismissal unfair contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996 (ordinary unfair dismissal) in that:-

(a) the claimant was not told in writing or otherwise not to contact the respondent’s client at the investigation meeting on 15 November 2011 and/or

(b) because of a failure to properly investigate the offence.

1.3 Whether, if the respondent is found to have failed to follow any applicable procedure, the claimant would have been dismissed in any event pursuant to Article 130(2) of the Employment Rights (Northern Ireland) Order 1996.

Detriment Pursuant to Making Protected Disclosure

2.1 Whether the claimant made a protected disclosure under Article 67B(d) of the Employment Rights (Northern Ireland) Order 1996 on or around 23 November 2011 to Sonya Ferguson that the respondent was misleading the public with blood test results for urine and blood that were not fit for purpose, which communication is denied was made by the respondent; and in particular:-

2.1.1 whether, if made, such “communication” was a communication of information as opposed to a mere allegation;

2.1.2 whether, if made, such communication was based on a genuine and reasonable belief by the claimant;

2.1.3 whether, if made, such belief was objectively justified;

2.1.4 whether, if made, such communication was made in good faith.

2.2 Whether the perpetrators of the alleged detriment knew of the protected disclosure.

2.3 Whether the claimant suffered any detriment and in particular whether the alleged failure to investigate the claimant’s disclosure and/or conduct (in contacting the respondent’s client which was omitted by the claimant) could amount to a detriment in any event.

Breach of Contract/Unlawful Deduction

3.1 Did the claimant suffer an unlawful deduction/breach of contract in that:-

3.1.1 he was not paid commission which was contractually due to him of £5000;

3.1.2 he has not been paid one week’s holiday pay.

On 7 December 2012 the claimant withdrew his claims for breach of contract and an unlawful deduction from wages. In his closing submission Mr Martin stated that this was not a whistle blowing dismissal case.

Findings of Fact

4. (1) The claimant was born on 28 October 1959. He was employed by the respondent as a Business Development Manager from May 2010 and this involved him in marketing health testing services to the general public and to corporate bodies. He earned £370.00 per week gross.

(2) In November 2011 while trying to generate business with the Bank of England at its Belfast office the claimant failed to attend two appointments made by him with the bank. The claimant acknowledged that he was at fault in missing the appointments.

(3) Following the failure by the claimant to attend the appointments the Bank of England made a complaint to the Managing Director of the respondent and that led to disciplinary proceedings against the claimant. A meeting was chaired by Lauziata Christie, to investigate the complaint made by the Bank of England. At the investigatory meeting the claimant’s professionalism in the way he attempted to generate business for the respondent was questioned.

(4) At the investigatory meeting on 15 November 2011 Lauziata Christie was accompanied by Linda Magee and Lauren Donaghy from HR. Arising from the investigatory meeting Lauziata Christie referred the matter to a disciplinary hearing for gross negligence.

(5) It is common case that in the course of the investigatory meeting the claimant raised the possibility of making an apology to the Bank of England. He raised the issue as to whether this was something the respondent would wish him to do. In response to his question Lauziata Christie replied, as is recorded in her note, that the account had gone to a higher level. She did not specifically answer his question affirmatively or negatively. In so concluding the tribunal had regard to the evidence of Lauziata Christie in which she explained to the tribunal that she had typed her note of the meeting, reviewed it, was satisfied with its contents, signed it and sent it to HR on 15 November 2011, the evening of the Investigatory meeting.

(6) On 15 November 2011 the claimant attempted to apologise to Ms Frances Hill from the Bank of England. She was not available and he left an apology with her secretary.

(7) On 16 November 2011 the claimant was invited to attend a disciplinary hearing to consider allegations of gross negligence against him in respect of his handling of a potential new account with the Bank of England and for his alleged failure to report what had occurred, which the respondent only discovered when a complaint was received.

(8) The claimant attended a disciplinary hearing on 18 November 2011. The disciplinary hearing was chaired by Mr David Martin who was accompanied by Linda Magee and Lauren Donaghy from HR.

(9) David Martin met with the claimant on 21 November 2011 to explain the outcome of the disciplinary hearing. He explained to the claimant that he was satisfied with the information collated from the investigation stage. He stated that the claimant had agreed to the points raised at the investigation and had failed to provide any mitigating factors. Mr Martin went on to say that his decision was to issue the claimant with a final written warning. He then stated to the claimant that the respondent would require an immediate, substantial and sustained level of improvement in his conduct and that any future breaches of any of the company’s disciplinary rules would result in further disciplinary action being taken. After the meeting the claimant was handed his outcome letter of 21 November 2011 which repeated the points that David Martin had made to the claimant orally. The claimant was offered a right of appeal which he did not exercise.

(10) As part of his duties to generate business the claimant met with Mr Mark Regan, Chief Executive of Kingsbridge Private Hospital, on 21 November 2011. At the meeting Mr Regan raised concerns about the legitimacy of the respondent’s testing as he stated that he had been told by Sonya Ferguson that all Randox tests were accredited which he had reason to doubt. Mr Regan then questioned the claimant about the accreditation credentials of the testing and the claimant was unable to provide answers to Mr Regan’s queries.

(11) The claimant’s belief was that the tests on blood and urine, which the respondent provided, were themselves accredited by UKAS.

(12) Subsequent to the meeting the claimant made a number of enquiries and discovered that the individual blood and urine tests were not themselves the subject of UKAS accreditation.

(13) The claimant asserts that on 23 November 2011 he met with Sonya Ferguson and during that meeting; discussed with her Mr Regan’s concerns; his belief that the blood and urine test were not UKAS accredited; that therefore he was misleading potential members of the public and/or potential corporate customers; that the tests, in his view, were not fit for purpose; and that his own personal integrity had been compromised.

(14) Sonya Ferguson completely denies that any such meeting took place or that there was any discussion between the claimant and her in connection with these matters or any suggestion that the claimant had complained to her about the accreditation of the tests or that they were misleading members of the public or corporate business.

(15) The blood and urine tests were not UKAS accredited. It appears that the testing on blood and urine is not required to be subject to the UKAS accreditation. However the respondent states that it was subject to ISO17025UK which, the respondent states, is an alternative accreditation.

(16) Faced with a claim and denial and in the absence of any objective evidence the tribunal is unable to determine whether such a meeting or discussion took place on 23 November 2011 between the claimant and Sonya Ferguson or that these matters were the subject of any discussion between them.

(17) On 25 November 2011 the claimant was invited to an investigatory meeting, to discuss matters in relation to his conduct on 15 November 2011 when he had visited the Bank of England to apologise for his missed appointment of 7 November 2011.

(18) The investigatory meeting was chaired by Chris Henry. Linda Magee and Lauren Donaghy from HR were also in attendance. At the start of the meeting Chris Henry stated to the claimant that he believed at the previous investigation the claimant had offered to apologise but was told not to and that the respondent had subsequently been told that he did so anyway. This belief came from an overview given to Mr Henry before the investigatory meeting at which the claimant was not present.

(19) The claimant denied that he had been so told. At that point Linda Magee referred to the note of the investigatory meeting on 15 November 2011 made by Lauziata Christie and quoted from that note as follows:-

“Colin said he would prefer the opportunity to apologise to the potential customer himself and explain how seriously he takes this and does not treat it in anyway trivially; however he did not know if this was something the company would want him to do. Lauziata told Colin that given the nature of this it had now gone to a higher level.”

(20) According to Chris Henry’s note of the investigatory meeting of 25 November 2011 he reiterated to the claimant that he was told not to apologise. Linda Magee also said according to the note that the claimant was, “… specifically told not to apologise”. The claimant reiterated that he did not understand that what Lauziata Christie said meant that he was not to apologise but thought that it meant the contract had been taken away from him.

(21) Chris Henry’s note of the meeting also records:-

“Furthermore, despite being told at the last investigation that failing to inform Senior Management of what was happening was entirely unacceptable Colin once again failed to inform Senior Management that he had been to visit this potential customer and apologise. As a result Sonya Ferguson was put in a very awkward position when she met with Frances Hill and was informed that Colin had been to apologise as Sonya had known nothing about this.”

(22) The outcome of the investigation was that Chris Henry referred the matter to a disciplinary hearing on the grounds of misconduct ie that the claimant had failed to follow instructions given to him not to contact the Bank of England and also had failed to inform Senior Management when he did so.

(23) The claimant was invited on 1 December 2011 to a disciplinary hearing on 2 December 2011 to consider allegations of misconduct against him, that he had failed to follow instructions given to him not to contact or apologise to Frances Hill of the Bank of England and that he failed to report to the respondent that he had apologised or attempted to apologise to Frances Hill.

(24) The letter of invitation also states:-

“Further information on the reasons for this action are detailed in Chris Henry’s overview which is enclosed.”

(25) Chris Henry’s overview states, inter alia:-

“As a result Sonya Ferguson was put in a very awkward position when she met with Frances Hill and was informed that Colin had been to apologise and Sonya had known nothing about this.”

(26) Mr Henry, for the investigatory meeting, did not have a statement from Sonya Ferguson in relation to the awkward position into which she was put. Nor was there any note before him of any verbal account that she had given of that event, if she had done so at all, to anyone in HR. Nor was he told the details of what was the awkward position into which she was put, save that she was embarrassed.

(27) Nor did Mr Henry think he should conduct any investigation in relation to what had been said at the meeting on 15 November 2011 when faced with the complete denial from the claimant that he had been told not to apologise by Lauziata Christie.

(28) The claimant attended at the disciplinary meeting on 2 December 2011. At the beginning of the disciplinary meeting he presented a document prepared by him beforehand.

(29) In the document he indicated that he did not form the impression that he was forbidden to go and personally apologise to Frances Neill and that when he had raised that subject he was told that the account had gone to a higher level. The claimant also disputed the assessment of Mr Henry that the “minutes” of the investigatory meeting made it evident that the claimant was not to apologise.

(30) The disciplinary meeting was conducted by Michael McQuillan. Lauren Donaghy was also in attendance as was the claimant.

(31) In addition to the documents of record relating to the investigatory meeting and disciplinary meeting Mr McQuillan was provided with a verbal briefing by Lauren Donaghy prior to the disciplinary hearing. The claimant was not present at such briefing nor did Mr McQuillan recall telling the claimant about the contents of that briefing.

(32) According to Mr McQuillan’s note of the disciplinary meeting he told the claimant that he understood an instruction had been given not to contact the customer and that the claimant had proceeded to do so and to apologise to the customer. The claimant disputed the accuracy of that. At this stage the claimant presented to Mr McQuillan two pages of typed submissions that he had prepared beforehand.

(33) The disciplinary hearing adjourned and recommenced at 3.30 pm on 2 December 2011. Mr McQuillan’s note of the meeting records:-

“Michael informed Colin that he believed this to be misconduct on the basis that he was instructed not to contact the client to apologise but did so. In addition Colin did not inform the company that he had apologised and the person visiting the customer was unaware of this and was put in a very embarrassing situation when the customer informed them. Michael said that as Colin was currently on a final written warning today’s decision would unfortunately mean dismissal.”

(34) In Mr McQuillan’s note of the disciplinary hearing, under the overview section, he states:-

“Colin’s actions with this client to date highlight his poor judgement when making business decisions. There is no longer any trust in Colin’s ability to make the correct decisions in the best interest of the Company. In the current economic climate we cannot afford to be misrepresented and have employees that conduct themselves unprofessionally, jeopardise our business opportunities and paint Randox in a negative light.”

(35) The claimant was not charged at the disciplinary hearing with any offence in relation to breaching trust, misrepresenting the company, acting unprofessionally or jeopardising business opportunities or painting Randox in a negative light.

(36) At the end of the meeting Mr McQuillan informed the claimant that he was being dismissed, following a finding of misconduct against him in the context of being on a final written warning. Mr McQuillan considered that he had no choice but to dismiss the claimant. The claimant was informed by letter of 5 December 2011 of his dismissal with four week’s notice.

(37) Linda Magee had absented herself from the disciplinary meeting as she had anticipated that she might be a witness at the disciplinary meeting or arising from it. However, Mr McQuillan did not call Linda Magee as a witness or seek a statement from her or investigate her evidence in this matter.

(38) By letter of 12 December 2011, the claimant appealed his dismissal. In his letter the claimant set out his reasons for appeal. He repeated his contention that he was not given any instruction not to contact the Bank of England. He further referred to the absence of any such comment in the note of the investigatory meeting of 15 November 2011 to that effect. He also challenged the dismissal as being an excessive sanction. The claimant quoted from the final written warning which required an immediate substantial and sustained level of improvement in his conduct after the disciplinary sanction had been imposed in relation to future conduct. He stated that he was not given the opportunity to improve his conduct as the respondent relied on an alleged past breach committed before he had received the final written warning.

(39) He concluded his appeal by asserting that his dismissal was prejudged and that the question of the apology was used as a pretext to get rid of him.

(40) An appeal hearing was scheduled for 21 December 2011 but was rescheduled, at the claimant’s request, to 6 January 2012. Mr Mark Bushe conducted the appeal hearing. Cathy Kirk from HR was in attendance as was the claimant and Caroline McDade, a Randox employee, who attended as a witness.

(41) It was apparent from the documents of record that there was a conflict between the claimant’s account of what he had been told in relation to the apology and what the respondent was suggesting he had been told at the investigatory meeting of 15 November 2011. The claimant reiterated to Mr Bushe that he had not been instructed not to apologise. The claimant also drew Mr Bushe’s attention to the note of the meeting of 25 November 2011 where it is recorded that Linda Magee had stated he was specifically told not to apologise. Mr Bushe identified this as the main area of contention in the entire process and informed the claimant that he would have an investigative meeting with Linda Magee regarding the conflicting accounts of the instructions issued during the meeting of 15 November 2011.

(42) Mr Bushe told the tribunal that he believed that the claimant had breached a policy within the employee handbook, ‘performing, arranging or carrying out work or activity which could be considered to be in competition with or which adversely affects in any way, the Company’s interests’. Mr Bushe concluded;-

“After considering the information given to me I believed the charges against the Claimant fell into the company’s disciplinary rules and can be referenced to the employee handbook as detailed above.”

(43) The claimant was not charged with performing, arranging or carrying out work or activity which could be considered to be in competition with or which adversely affects in any way the company’s interests.

(44) Following the appeal meeting of 6 January 2012, Mr Bushe interviewed
Linda Magee on 12 January 2012. His interview related principally to what instruction, if any, had been given to the claimant in relation to his request to apologise to the Bank of England for his failed attendance at appointments.

(45) The note of the interview states:-

“Linda said having read the minutes from the investigation, she felt that the minutes did not completely convey the situation as you had to be present, ….”

She added “… being present at the meeting visually the instruction was clear. … Lauziata clearly said no and shook her head and said the matter was now being dealt with at a higher level.”

She also stated that in her opinion the instruction was clear.

(46) Mr Bushe then asked Linda if the claimant could have left the meeting in any doubt about Lauziata’s instruction. Linda Magee repeated that in her view Lauziata’s instruction was clear.

(47) Following this investigatory meeting, Mr Bushe did not report back to the claimant on the outcome of this investigation, or provide him with a copy of Linda Magee’s statement, to inform him she did not support his account, or invite him to make any further submissions that he would wish to make in relation to that.

(48) It appears, from Mr Bushe’s overview, that on the basis of Linda Magee’s statement to him, he accepted that the claimant was given a clear instruction not to apologise to the Bank of England. That account was being dealt with by a senior manager and he concluded that the claimant had refused to carry out a reasonable, lawful direct instruction given by management which is a rule within the employee handbook. He further concluded that the claimant had breached another policy within the employee handbook, “performing, arranging or carrying out work or activity which could be considered to be in competition with, or which adversely affects in any way the company’s interest”. However, the claimant was not charged with breaching this policy.

(49) Mr Bushe considered that as the claimant was on a final written warning that he was left with no option but to progress the disciplinary process through to the next stage which was dismissal.

(50) Again in the overview, Mr Bushe records that the claimant failed to make the correct business decision similar to his earlier disciplinary when he was issued with a final written warning. He stated that his lack of business acumen and failure to make a good business decision is dangerous in today’s economic climate. Again the claimant was not charged with anything in relation to this matter.

(51) After the appeal hearing on 6 January 2012 and after making his submissions to Mr Bushe, the claimant left the room accompanied by Cathy Kirk. He informed Ms Kirk that he was advised by his solicitor to speak to her regarding his concerns, in the hope that it would go in his favour when Mr Bushe was making his decision. The claimant advised Ms Kirk that he had been selling tests to customers believing the tests were accredited. However, he had since learned that they were not accredited. The claimant said Sonya Ferguson told customers the tests were accredited. He also said that he had been selling these tests on the assumption that the tests were accredited and he had no reason to believe they were not. He said this put him in an awkward position as he had been misinforming customers about the respondent’s tests. He went on to say that he had a full customer list and would have no hesitation in contacting the customers to inform them of this misinformation. He stated that this would be very damning for the company and the company’s reputation. The claimant went on to say that he would not do this if the decision was made in his favour and he was reinstated into the company.

(52) Ms Kirk advised Mr Bushe of the exchange with the claimant. The appeal hearing was not resumed as the claimant requested to deal with this matter.

(53) By letter of 16 January 2012 the claimant was informed that his appeal was unsuccessful and his dismissal stood.

(54) On 31 January 2012, Cathy Kirk, the Human Relations Officer, wrote to the claimant and described the claimant’s conversation with her as an attempt to blackmail the company into continuing his employment with the company on threat of him releasing some company information. He was advised that if he made any such statements that are litigious in nature, the respondent would have no hesitation in taking any and all legal courses that are available to the company.

(55) The tribunal is satisfied that the claimant’s conversation with Ms Kirk on 6 January 2012 after the appeal meeting had concluded was an attempt by the claimant to put pressure on the respondent to reverse its decision to dismiss him.

(56) The tribunal is further satisfied that had Mr Bushe removed the dismissal penalty imposed on the claimant by the respondent he would have faced further disciplinary proceedings arising from the threat made to the respondent by the claimant on 6 January 2012. We are further satisfied that the charge would have been one of gross misconduct and the likely outcome would have been dismissal as the claimant was on a final written warning.

(57) The tribunal is satisfied that the disciplinary process for a charge arising from the threat issued by him against the respondent on 6 January 2012 would have resulted in his dismissal within two weeks.

The Law

5. (1) A protected disclosure means a qualifying disclosure as defined in Articles 67B of the Employment Rights (Northern Ireland) Order 1996 (Article 67A the Employment Rights (Northern Ireland) Order 1996).

(2) A qualifying disclosure is any disclosure of information which in the reasonable belief of the worker making the disclosure, tends to show one of the following:-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any of the preceeding subparagraphs has been, is being or is likely to be deliberately concealed. (Article 67B the Employment Rights (Northern Ireland) Order 1996).

(3) It is necessary that the worker making the disclosure has a reasonable belief that the disclosure tends to show one of the statutory categories of failure as set out at 5(2) above. It is not necessary for the information itself to be actually true. A disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect. (Darnton v University of Surrey [2003] IRLR 133 EAT). The EAT confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations. Although it was recognised that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief, the assessment of the individual’s state of mind must be based upon the facts as understood by him at the time. (Harvey of Industrial Relations and Employment Law C111[6]).

(4) The statutory test is a subjective one. This is because the Employment Rights Order states that there must be a reasonable belief on the part of the worker making the disclosure. It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker would have held such a reasonable belief. (Harvey on Industrial Relations and Employment Law C111[7]).

(5) However the general thrust of the legislation is for a very broad range of information to be capable of amounting to a qualifying disclosure. The general requirement is that the disclosure must be of information and that a mere allegation against the employer or a simple expression of dissatisfaction by the employee will not suffice. (Cavendish Munroe Professional Risks Management Limited v Geduld [2011] IRLR 38, EAT; Goode v Marks and Spencer plc UK EAT/00442/09, [2010] ALLER(D)63; and Smith v London Metropolitan University [2011] IRLR 884 EAT (Harvey on Industrial Relations and Employment Laws C111[11]).

(6) Under Article 67B of the Employment Rights (Northern Ireland) Order 1996 the term ‘likely’ requires more than a possibility or risk that the employer might fail to comply with a relevant legal obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation (Kraus v Penna plc [2004] IRLR 260, EAT).

(7) In respect to each manner of disclosure sanctioned by the legislation it is necessary for the disclosure to be made in good faith. In this context the term good faith requires consideration of the motive of the worker. This is in line with the fact that the purpose of the legislation is not to allow people to advance personal grudges, but to protect those who make certain disclosures of information in the public interest. Accordingly, where a disclosure is made because of a personal grudge it will not be protected under the legislation even where the information disclosed is true and would otherwise qualify for protection (Street v Derbyshire Unemployed Worker’s Centre [2004] IRLR 687) (Harvey on Industrial Relations and Employment Law C111[15]).

(8) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure (Article 70B of the Employment Rights (Northern Ireland) Order 1996).

(9) An employee who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one reason, the principal reason for the dismissal is that the employee made a protected disclosure (Article 134A of the Employment Rights (Northern Ireland) Order 1996).

(10) Where the worker has suffered a detriment it is still necessary to establish that the detriment arises from an act, or a deliberate failure to act, by the employer (Harvey on Industrial Relations and Employment D11[93]).

(11) The act or deliberate failure to act of the employer must be done on the ground that the worker in question has made a protected disclosure. This requires an analysis of the mental processes (conscious or unconscious) which caused the employer so to act and the test is not satisfied by the simple application of a ‘but for’ test (Harrow London Borough v Knight [2003] IRLR 140). The employer must prove, on the balance of probabilities, that the act, or deliberate failure to act, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower (NHS Manchester v Fecitt [2012] IRLR 64, CA) (Harvey on Industrial Relations and Employment D11[95]).

(12) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair. If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 of the Employment Rights (Northern Ireland) Order 1996).

(13) Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been complied with and the non-compliance is wholly or mainly attributable to the failure of the employer to comply with its requirement the dismissal is automatically unfair (Article 130A of the Employment Rights (Northern Ireland) Order 1996).

(14) The failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure (Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996).

(15) Where an employer dismisses an employee for misconduct, he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

(16) Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness, according to the decision of the Court of Appeal in Taylor v OCS Group Limited [2006] ECA Civ 702, [2006] IRLR 613. (Harvey on Industrial Relations and Employment Law D1 paragraph [1528]).

(17) In certain circumstances, an otherwise unfair dismissal may be rendered fair if the unfairness is merely procedural and the employer can show that the decision would have been the same even had fair procedures been adopted. (Employment Rights (Northern Ireland) Order 1996 Article 130A (2)).

(18) When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer (Harvey on Industrial Relations and Employment Law D1 paragraph [1534]).

(19) In the decision of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 the Northern Ireland Court of Appeal stated:-

“21. … It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal must also, of course, consider whether the misconduct was a sufficient reason for dismissing the employee.”

(20) Later it added:-

“26. … The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.”

(21) In the decision of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 the English Court of Appeal reiterated that in a misconduct case British Home Stores Limited v Burchell [1978] IRLR 379 EAT remains the corner stone of misconduct dismissals. The head note states:-

“According to British Home Stores Limited v Burchell, in cases of dismissal on the ground of misconduct, the tribunal has to decide whether the employer entertained a reasonable belief in the guilt of the employee. The employer must establish the fact of that belief; that there were reasonable grounds in his mind to sustain that belief; and that he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

It further approved the principle in A v B [2003] IRLR 405 EAT that when considering reasonableness under Article 130(4) of the Employment Rights (Northern Ireland) Order 1996, relevant circumstances include the gravity of the charges and their potential effect on the employee.

(22) In Roldan Elias J stated at page 724, paragraph 13;-

“So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where … the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.”

He further observed, at page 729 paragraph 73:-

“The second part raised by this appeal concerns the approach of employers to allegations of misconduct where … the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred …”

(23) Longmore LJ in the English Court of Appeal decision in Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 at paragraph 18 gave some helpful advice in a misconduct dismissal:-

“… 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 the dismissal is within the range of reasonable options open to a reasonable employer.

He later added at paragraph 19:-

“… 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.”

(24) Further helpful advice is set out on a misconduct dismissal in the English Court of Appeal’s decision in Fuller v The London Borough of Brent [2011] IRLR 414 at 54 where Morre-Bick LJ commented:-

“The precise nature and extent of the misconduct in question will obviously play a large part in determining whether the employer’s decision to dismiss the employee is within the range of reasonable responses.”

(25) A breakdown in confidence between an employer and a senior executive for which the latter was responsible and which actually or potentially damaged the operation of the employer’s organisation, or would render it impossible for senior executives to work together as a team, can amount to some other substantial reason for dismissal. Provided the terms of Article 130 of the Employment Rights (Northern Ireland) Order 1996 are satisfied, it must be possible for an employer fairly to dismiss an employee in such circumstances (Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934 CA).

(26) There is no reason why the Burchell principles should be limited to conduct cases (Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934 CA).

Application of the Law and Findings of Fact to the Issues

Breach of Contract/Unlawful Deduction from Wages

6. (1) As the claimant withdrew his claims for a breach of contract and/or an unlawful deduction from wages both claims are dismissed.

Protective Disclosure

(2) The claimant alleges that he made a qualifying disclosure to the respondent.

(3) In his skeleton argument Mr Martin suggested that the disclosure occurred on 23 November 2011 during an alleged conversation between the claimant and Sonya Ferguson. Mr Martin also contends that the claimant repeated the disclosure on 6 January 2012 to Cathy Kirk after his appeal hearing against his dismissal had been concluded.

(4) The disclosure is that the tests of blood and urine used by the respondent and offered for sale to customers were themselves not accredited.

(5) At the material time the blood and urine tests were not accredited under the UKAS accreditation.

(6) The respondent asserted, and it was not challenged, that the blood and urine tests were the subject of an alternative accreditation ie 15017025UK.

(7) The claimant’s belief that the blood and urine tests were not accredited is not correct. However as the tribunal did not find the claimant an untruthful witness we accept, on the balance of probabilities, that he believed that although Mr Algazy did raise a number of question marks about the reasonableness of that belief.

(8) The reasonable belief relied on by the claimant falls under Article 67B(1)(d) of the Employment Relations (Northern Ireland) Order 1996 namely, “that the health or safety of any individual has been, is being or is likely to be endangered”.

(9) The alleged disclosure therefore is capable of being a protective disclosure for the purposes of the Employment Rights (Northern Ireland) Order 1996.

(10) As the tribunal is not persuaded, on the balance of probabilities, that the alleged disclosure to Sonya Ferguson on 25 November 2011 occurred there has not been a disclosure to his employer.

(11) Therefore there has not been a protected disclosure by the claimant to the respondent.

(12) The making of the disclosure to Cathy Kirk on 6 January 2012 is not one of the issues agreed for determination by the tribunal. In addition this disclosure occurred after the claimant has been dismissed and after his appeal has been heard. This disclosure does not cause a detriment and was not made in good faith as it was a threat designed to ensure his dismissal was overturned. Accordingly, we do accept that this amounts to a protected disclosure.

(13) As the tribunal has found that the claimant has not made a protected disclosure he cannot have suffered a detriment by reason of a protected disclosure and that element of his claim is dismissed.

Unfair Dismissal

(14) As the claimant abandoned his claim for dismissal by reason of having made a protected disclosure the tribunal dismisses that element of his claim.

(15) The tribunal is satisfied that the respondent has identified the reason for the claimant’s dismissal as set out at paragraphs 4(33) and (34) above.

(16) The tribunal is further satisfied that that reason is a conduct issue and is one of the statutory reasons that can render a dismissal fair.

(17) The investigation process was flawed in a number of respects:-

(a) At the start of the meeting Chris Henry the chairman of the investigation stated that he believed the claimant had been told not to apologise, arising from an overview given to him prior to the investigation.

(b) He construed the minute of the previous disciplinary hearing (set out at paragraph 4(19) above) as meaning the claimant was told not to apologise when on any reasonable reading of the minute it does not say so.

(c) The HR person in attendance, Linda Magee, was an advocate at the investigatory meeting of the same erroneous construction of the minutes.

(d) Mr Henry failed to investigate what Lauziata Christie had told the claimant at the previous disciplinary hearing. This is in circumstances where he could have investigated the matter with Lauziata Christie, where the claimant’s job was obviously at risk as he was on a final written warning and where he was denying he had been told not to apologise to Frances Hill.

(e) Nor was any attempt made to investigate the “very awkward position” that Sonya Ferguson had been put into when she met Frances Hill. He did not have a statement from Sonya Ferguson or even a record of her complaint.

(18) The disciplinary hearing was flawed in a number of respects:-

(a) Mr McQuillan, the disciplinary hearing officer, had a private overview before the hearing and the claimant was not made aware of its contents or invited to comment on it.

(b) He failed to address the flaws of the investigation process in that, faced with the claimant’s denial that he had been told not to apologise, he failed to investigate this matter.

(d) Nor did he have any evidence before him of the embarrassment caused to Sonya Ferguson.

(e) He also relied on factors to justify the dismissal with which the claimant had not been charged, ie, there no longer was any trust in the claimant’s ability to make correct decisions in the best interest of the company; misrepresenting the respondent; conducting himself unprofessionally; jeopardising the respondent’s business opportunities and painting the respondent in a sensitive light.

(19) The appeal process was also flawed in a number of respects:-

(a) Although Mr Bushe identified the dispute about whether the claimant was told to apologise or not he failed to seek a statement from Lauziata Christie, who allegedly told the claimant not to apologise.

(b) Rather he sought a statement from Linda Magee who was an advocate of the erroneous construction of the minutes.

(c) Nor did he seek to interview Lauziata Christie when at the interview with Linda Magee in 12 January 2012 she raised two completely new pieces of evidence never previously referred to, ie, that Lauziata Christie in response to the claimant’s question about apologising had answered no and shook her head. Linda Magee also accepted that the minutes, upon which the respondent had placed emphasis, were not clear.

(d) He also failed to report to the claimant the outcome of his investigation, particularly about the new pieces of evidence and allow the claimant to comment.

(e) Like Mr McQuillan he relied on factors with which the claimant was not charged, ie, performing, arranging and carrying out work or activities which could be considered to be in competition with or which adversely affected the respondent’s interests, or lacking business acumen and failing to make a good business decision which Mr Bushe regarded as dangerous in today’s economic climate.

(20) Although the claimant had not reported his attempt to apologise it is not possible to say whether this alone could have justified his dismissal given that at each step of the process there were significant flaws that significantly influenced the outcome at each stage.

(21) The decision to dismiss in the circumstances of this case was not within the band of reasonable responses for a misconduct claim.

(22) The flaws identified above at the different stages of the process are also pertinent to a claim that the respondent can rely on justifying the dismissal on “some other substantial reason”. Therefore this ground cannot justify a dismissal.

(23) Had the claimant not been dismissed the tribunal is satisfied that he would have faced further disciplinary action for his threat to the respondent made after the appeal meeting on 6 January 2012. It is, probable, in the tribunal’s view that the result would have been a finding of misconduct and that dismissal would have been the penalty.

(24) Based on the expeditious way in which the respondent deals with disciplinary matters it is likely he would have been dismissed within two weeks of 6 January 2012. Any loss of earning suffered by the claimant by reason of his unfair dismissal would end at that time.

(25) The tribunal is not persuaded that there was contributory fault on the part of the claimant. Accordingly he is awarded compensation as set out below:-

Basic Award	£370.00 x 1	=	£370.00

Compensatory Award

From 31 December 2011 to 20 January 2012	£244.20 x 3	=	£732.60

Loss of Statutory Rights		=	£250.00

Total Compensation		=	£1,352.60

Prescribed period is 31 December 2011 to 20 January 2012

Prescribed amount (£1,352.60 - £732,60)		=	£620.00

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

Chairman:

Date and place of hearing: 3, 4, 5, 6, 7 December 2012; 24 and 25 January 2013.

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 >> Stanex v Randox Laboratories Limited Randox Laboratories Limited [2013] NIIT 00388_12IT (08 May 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/388_12IT.html Cite as: [2013] NIIT 00388_12IT, [2013] NIIT 388_12IT

Industrial Tribunals Northern Ireland Decisions