McKernan v Country Care Homes Ltd Country Care Homes Ltd [2013] NIIT 438

THE INDUSTRIAL TRIBUNALS

CASE REFS: 438/13

439/13

CLAIMANTS: Debbie McKernan

Kevin McKernan

RESPONDENT: Countrywide Care Homes Ltd

DECISION

The unanimous decision of the tribunal is that both claimants were automatically unfairly dismissed for the purposes of Regulation 7(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulation 2006 and the Employment Rights (Northern Ireland) Order 1996 and, in the alternative, that they were unfairly dismissed for the purposes of the 1996 Order. Compensation is ordered in the sums set out in this decision, totalling £3,943.20 in respect of the first-named claimant and £17,948.42 in respect of the second-named claimant.

The attention of the parties is drawn to the recoupment notice attached to this decision in respect of the second-named claimant.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs V Walker

Mr B McAnoy

Appearances:

The claimants were represented by Mr S Gilmore, Barrister-at-Law, instructed by Francis Hanna & Company, Solicitors.

The respondent was represented by Ms J Knight, Solicitor, of Hicks Watson Employment Law Practice Limited.

The hearing

1. The evidence at the hearing was given orally without the prior exchange of witness statements. It extended over three days, 29 and 30 July 2013 and 2 August 2013.

2. The respondent called three witnesses:-

(a) Ms Debra Hawthorne, who conducted the investigation;

(b) Ms Caron Conroy, the respondent’s Quality Assurance Manager, who conducted the disciplinary hearing; and

(c) Ms Jenny Delic, who was the Human Resources Director for the group of companies which included the respondent and who heard the appeals brought by both claimants.

3. The tribunal’s decision in relation to each claim was reserved and this document contains those reserved decisions.

Background

4. The two claimants were a husband and wife who had worked for approximately four years in a care home which was originally owned by Southern Cross Healthcare Ltd (‘Southern Cross’) and was then taken over by the respondent company on TUPE terms. It was not in dispute that the employment of the two individuals passed to the respondent company under TUPE and that the position was as if their original contract of employment had been entered into between them and the respondent company.

5. Each of the two claimants had criminal convictions which were the subject of enhanced disclosure certificates received by Southern Cross at the start of their employment in 2008. Following discussion and explanation of each of the items listed in those enhanced disclosure certificates, their employment with Southern Cross continued.

6. In the ensuing four years, there were no complaints of any nature against either claimant by management, by the Regulation and Quality Improvement Authority (‘RQIA’), by patients or by patients relatives. The second-named claimant, Mr McKernan, was promoted from kitchen assistant to head chef and the first-named claimant, Mrs McKernan, was given additional responsibilities on a bank of casual staff which provided care assistant facilities of a personal nature.

7. When the respondent took over the nursing home in Dungannon, it sought enhanced disclosure certificates in relation to all the employees who passed to it under TUPE. The enhanced disclosure certificates received in respect of the two claimants showed the earlier convictions which had already been the subject of discussion with Southern Cross. They showed no further convictions.

8. The respondent dismissed both claimants solely on the basis of the enhanced disclosure certificates. The claimants alleged unfair dismissal.

The issue

9. The issues before the tribunal were:-

“(1) Whether either claimant had been automatically unfairly dismissed for a reason connected with a relevant transfer contrary to Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006?

(2) Whether either claimant had been unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) Order 1996?”

Relevant law

10. Article 130 of the 1996 Order provides:-

“(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 it 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.”

11. The 1996 Order at Article 130(4) provides:-

“(4) In any other case where the employer has filled 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.”

12. The respondent company in the present case argues that the convictions shown on the enhanced disclosure certificates, even though they had been discussed at the commencement of employment with Southern Cross, were a ‘substantial reason’ justifying the dismissals for the purposes of Article 130(1)(b). If the respondent succeeds in establishing that initial point (and the onus of proof is on the respondent in that respect) the tribunal must then determine whether or not the dismissals were fair or unfair in accordance with Article 130(4) or of its Great Britain equivalent. The relevant case law relates largely to misconduct dismissals rather than dismissals for ‘a substantial reason’. However the principles are the same.

13. 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.

14. 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.”

15. 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.”

16. 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.”

17. 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”

18. 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.”

19. In situations such as the present situation the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply to the transfer of the claimants. This is not in dispute. The contracts of employment initially made between each of the claimants and Southern Cross transferred without alteration to the respondent and thereafter they were deemed to have been made originally between the respondent and each of the two claimants. A dismissal is automatically unfair if the transfer, or a reason connected with it, is the reason or principal reason for the dismissal of the employee in question.

Regulation 7 states:-

“7(1) Where either before or after a relevant transfer any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismiss is –

(a) the transfer itself; or

(b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.”

Findings of fact

20. The claimants are husband and wife and lived close to the nursing home in Dungannon.

First-named claimant – Mrs McKernan

21. In or about April 2008, the first-named claimant applied for the post of housekeeper in the nursing home which was, at that stage, in the process of being built and being made ready for residents. The operator and owner of the home was at that time Southern Cross. The application form for the post contained a separate section headed ‘Rehabilitation of Offenders Act’ and which asked for details of all pending or past convictions. The claimant did not attempt to complete that section. She did not specify any pre-existing convictions. Equally, she did not assert that her record was clear at that stage by writing ‘none’ as directed by the form. She did not sign or date that part of the form but simply left it uncompleted.

22. The first-named claimant provided documentation to enable her prospective employer to obtain an enhanced disclosure certificate from Access NI.

23. The initial enhanced disclosure certificate was received shortly thereafter on or about August 2008 by Southern Cross. It was not retained on the first-named claimant’s file. It is apparently the practice in the care industry to destroy enhanced disclosure certificates after approximately six months. The respondent accepts that Southern Cross sought and received an enhanced disclosure certificate in respect of the first-named claimant on her employment in 2008. It is also clear, and the respondent accepts, that a meeting took place on 14 August 2008 between the first-named claimant and her supervisor to discuss the content of that disclosure.

24. That enhanced disclosure certificate showed that an incident or incidents which had occurred on 16 May 2005, some three years earlier, had led to convictions for the first-named claimant for disorderly behaviour, assault on police, obstructing police and resisting police. The first-named claimant had been given a two month suspended sentence.

25. The supervisor in Southern Cross at that time was Mr Tony Hart. As stated above, he interviewed the first-named claimant on 14 August 2008. The circumstances of the offences which had occurred on 16 May 2005 were discussed, together with her failure to complete in full the job application form. Mr Hart stated that he had taken advice from Southern Cross (presumably from the headquarters of Southern Cross) and that he would be informing the RQIA and seeking further advice. He confirmed in the course of that interview that the first-named claimant’s standard of work was good and that there were no other issues in relation to her employment.

26. A risk assessment was completed at that time in relation to the first-named claimant’s continued employment in the nursing home. That assessed any risks to residents at the lowest possible rating. It recommended continual monitoring and supervision of the first-named claimant during her probationary period.

27. The first-named claimant successfully completed her probationary period. There were no complaints against her from her employer, from patients, from patients’ relatives or from the RQIA. She was furthermore given additional casual bank work in 2009 and onwards. This involved her in providing personal care to individuals. This further work provoked no complaints and no difficulties. It was in addition to her continued full-time contract as a housekeeper in the nursing home.

28. There is no record of any response from RQIA in relation to any request for advice from Mr Hart as he indicated on 14 August 2008. However, it is clear that the RQIA would have conducted regular inspections of the nursing home from 2008 onwards and that they would have had full access to all members of staff and to all relevant paperwork. They would, in particular, have direct access to the first-named claimant in her role as housekeeper and, in particular, in her role as the person in charge of the laundry department. The respondent has pointed to no concerns brought to its attention by the RQIA or indeed by anyone else in relation to the first-named claimant’s continued employment in the nursing home. The clear indication in the interview records relating to 14 August 2008 was that the RQIA would be consulted and shows how seriously Southern Cross viewed the situation. The tribunal concludes that they were consulted. The first-named claimant was then issued with a contract of employment. The respondent has indicated that it is not the role of the RQIA to adjudicate on employment issues. However, they had earlier pointed out in evidence a particular instance where an employee who had committed a criminal offence during the course of their employment was the subject of an opinion of RQIA that his employment could not continue. In any event, in the present case, no objections are recorded as having been received from the RQIA. More importantly, the tribunal concludes that neither Southern Cross, the patients, the patients’ relatives had any difficulty with the first-named claimant’s employment performance or with her continued employment.

Second-named claimant – Mr McKernan

29. In March or April 2008, the second-named claimant applied for a job in the kitchen of the nursing home. An application form was completed on his behalf and was signed by him on 3 April 2008. As with the first-named claimant, the section of the form headed ‘Rehabilitation of Offenders Act’, which asked for details of past or pending convictions, was left blank with no details, no signature and no date. The failure to address that part of the form was perfectly obvious and did not in itself signal any intention to deceive. It may have been explained by a failure to understand the nature of the Rehabilitation of Offenders Act, its effect on this particular type of employment or what constituted spent convictions in this context. It may indeed have been a failure to understand legal advice had been sought by the first-named claimant. However, in the final analysis it does not really matter. The convictions of both the first and second-named claimants were brought to the attention of Southern Cross at the commencement of employment and were dealt with fully at that stage before contracts of employment were signed.

30. In any event, the second-named claimant was interviewed by Mr Tony Hart on 3 April 2008 for the post of kitchen assistant/assistant cook. In the course of that interview he mentioned a criminal conviction for traffic offences. He did not mention any other convictions and given that he had supplied identity documents for photocopying so that an enhanced disclosure certificate could be obtained, it is difficult to see what the second-named claimant had hoped to achieve by not mentioning the other convictions at that point. All the convictions were going to be disclosed to Southern Cross in any event. His explanation to the tribunal was that he simply panicked at that stage. Whether or not that is the fact is not strictly to the point of the present case. The second-named claimant was not dismissed by the respondent for misconduct, ie for failing to complete a claim form in a particular way or for failing to answer at an interview in a particular way. He was dismissed because of the existence of convictions which were, on receipt of the original enhanced disclosure certificate, known some four years previously by Southern Cross and which had been then discussed fully between Southern Cross and the second-named claimant.

31. The enhanced disclosure certificate which was then received, shortly after April 2008, has again not been retained by the respondent. However, the tribunal concludes that it must have been obtained by Southern Cross. We accept the second-named claimant’s evidence that, following receipt of that enhanced disclosure certificate by Southern Cross, he was summoned to a lengthy meeting with Mr Hart and a Ms Mary Clarke. At that meeting, the second-named claimant provided details of each of the convictions disclosed on the enhanced disclosure certificate. The most recent matter disclosed included four convictions which arose from the incident on 16 May 2005 and which were the same as those received by the first-named claimant, ie disorderly behaviour, assault on police, obstructing police and resisting police. That again was three years before the commencement of employment in the nursing home. He also had convictions for taking and driving away and motoring offences in 2000 and 2003. He said that the vehicle in question belonged to the first-named claimant and that he had not wanted to get her into trouble. There were two further convictions. He was convicted of criminal damage on 4 July 1998 when aged 18. He was fined £50.00 for this offence. He stated that the offence was that he had urinated in a police cell when kept overnight. Finally, he was convicted of arson on 23 May 1999 when aged 17 and sentenced to 150 hours community service. He explained the circumstances relating to that offence which involved a crowd of young individuals setting fire or attempting to set fire to a vehicle. The sentence received by the second-named claimant would indicate that his involvement in the offence was at the lower end of the scale.

32. The tribunal accepts that this meeting took place as described by the second-named claimant and that while his employment continued thereafter, he was told by Mr Hart that they ‘would be keeping a close eye on him’. It is inconceivable that Southern Cross, which was itself subject to regular and unannounced inspections by the RQIA and whose paperwork was open to inspection by the RQIA, would not have, firstly, sought the enhanced disclosure certificate and, secondly, not have questioned him about it in the manner described by the second-named claimant. In any event the respondent accepts that an enhanced disclosure certificate had been received by Southern Cross when the second-named claimant began employment and that he had been permitted by Southern Cross to continue that employment.

33. The second-named claimant continued to work satisfactorily for Southern Cross for some three years and then for one year with the respondent, without any complaint from the patients, from their families, from management or the RQIA. He had relatively close contact during this period with residents, including both serving food to nursing assistants who would then pass it to residents and individual discussions with residents and with those on their behalf relating to nutritional requirements.

34. Following his promotion, by Southern Cross, to head chef in or around 2009, he was responsible for running the kitchen, ensuring its adequate stocking and safety and for compiling relevant staff rotas. His employment in that role continued to be satisfactory.

35. On or about 20 October 2011, the respondent took over the nursing home from Southern Cross under TUPE terms. The employment of the staff, including the two claimants, continued uninterrupted.

36. The respondent sought enhanced disclosure certificates in respect of all the employees in the homes previously run by Southern Cross which it had taken over (33 in total) starting with the longest standing employees in each home first. The two claimants were therefore amongst the first in respect of whom enhanced disclosure certificates were sought in this exercise. The other employees of the respondent’s sister company continued in the normal way, on a rolling basis, to be subject to enhanced disclosure checks. They were not part of the particular audit exercise seeking such certificates. It was restricted to former employees of Southern Cross.

The enhanced disclosure certificate was issued in respect of the second-named claimant on 22 October 2012 and in respect of the first-named claimant on 24 October 2012. Both claimants were suspended by the respondent on 29 October 2012.

Disciplinary process – Ms Debbie McKernan (first-named claimant)

37. A letter dated 30 October 2012 from the respondent to the first-named claimant confirmed the suspension and asked her to attend a disciplinary hearing. It stated that the reasons for the hearing were as follows:-

“A serious and extensive criminal record identified on a recent Access NI disclosure requested by the company as a routine exercise.

Breach of company policy.

Severe loss of trust and confidence.”

The letter stated:-

“It is company policy that regardless of when the offences were committed, some convictions (listed in their policy) will mean that applicants will not be accepted due to the nature of our business in dealing with vulnerable adults. In this particular case the offences of which you have been convicted of are included in our non-exhaustive offences in the company policy where we would not accept you as an applicant. This is therefore a breach of company policy.”

38. A further letter of 2 October 2012 to the first-named claimant raised an additional point, ie:-

“Potential reputational damage to the company.”

It provided a date of 12 November 2012 for disciplinary hearing which was to be conducted by Ms Vicky Rundell, the HR Manager of the respondent company.

No evidence has been produced to the tribunal of any actual reputational damage which has occurred at any stage but particularly before the dismissal of the claimants.

39. Four days later, on 6 November 2012, and even though a disciplinary hearing had already been scheduled, an investigatory meeting then took place between Ms Debra Hawthorne and the first-named claimant. There was a note taker but there was no representation of the first-named claimant. It is difficult for this tribunal to understand why this investigatory meeting took place given that it had already been decided that the matter should move to a disciplinary hearing where representation would be afforded. It is even more difficult to understand the purpose of this meeting when it emerged in the course of the tribunal hearing that Ms Hawthorne had not been told what the enhanced disclosure certificate disclosed and had simply been told that one had been received and to investigate it. In other words, she had been tasked with holding an investigation but had not been told what she was to investigate or indeed how she was to go about it. The purpose of such an investigation where there is a pre-existing disciplinary procedure is problematic.

The respondent gave evidence that Ms Hawthorne was not authorised to see enhanced disclosure certificates, which raises a question as to why or how she was selected to conduct the investigation. The tribunal concludes that the conduct of the investigation demonstrated a level of unreasonableness outside that to be expected for a fair or reasonable employer.

40. In any event, the first-named claimant, who had received a copy of the enhanced disclosure certificate, explained the content of it to Ms Hawthorne. In relation to that one night in 2005 to which her convictions related, she stated that a person who is known to her was attacked by the police. She had asked the police to leave them alone and she and her husband were arrested. She confirmed that she had told Tony Hart in the course of the interview about the convictions. She stated she did not feel she needed to repeat this disclosure to the respondent on a TUPE transfer since she assumed it would have been in the files.

41. A first disciplinary hearing took place on 12 November 2012 chaired by Ms Vicky Rundell. The first-named claimant attended, represented by Mr Alan Perry of GMB. Ms Rundell stated that she had decided it would go to a disciplinary procedure even before completion of the investigation process. On that basis, Mr Perry objected to Ms Rundell chairing with the disciplinary hearing. Ms Rundell stated (apparently incorrectly) that ‘this is company policy that we do not employ anyone that has a conviction for assault’.

When Mr Perry suggested that Ms Rundell had pre-judged the issue she replied:-

“The facts are there in black and white.”

42. Following that hearing, the respondent decided to re-list the disciplinary hearing before a different chairman. That new disciplinary hearing was to be chaired by Caron Conroy, the Equal Quality Assurance Manager. It stated that the disciplinary hearing would address the following allegation:-

“A severe and extensive criminal record identified on a recent Access NI disclosure requested by the company as a routine exercise.

Breach of company policy.

Potential reputational damage to the company.

Severe loss of trust and confidence.”

The disciplinary hearing was heard on 3 December 2012.

The first-named claimant stated again that she had told Mr Hart that she had had a record and had discussed the matter with him at a meeting. Ms Conroy stated:-

“I would not have employed you to be honest with you - no disrespect to you.”

This was at an early stage in the disciplinary hearing and indicates that Ms Conroy had already decided on the outcome of the hearing.

43. The first-named claimant stated:-

“That night I know that I shouldn’t have intervened. I work outside this home with youth clubs and hurling clubs. If this came back and I’d just applied for this job I know you wouldn’t employ me and that’s fair enough but I have proved myself in this company.”

44. The respondent wrote to the first-named claimant on 6 December 2012. The letter stated:-

“Recent media and public attention has highlighted various concerns in relation to the standards maintained within the Health & Social Care Sector, particularly in relation to care homes and therefore the reputation is paramount to the business. I have had to take into consideration the reputation of the company when reaching my decision as I feel that if the relatives and the general public were aware that the business employ staff with criminal convictions of assault, disorderly behaviour, obstructing and resisting the police, the name of the company would seriously be brought into disrepute. Therefore in the best interests of our service users, the trust and service user family members place with us and the reputation of the company, I felt that there was no other option than to dismiss you from the home on the grounds of some other substantial reason and therefore you will be paid up to and including 6 December 2012 and four weeks in lieu of notice.”

45. The first-named claimant appealed against that decision and stated:-

“I feel it is very unfair to dismiss me as I tried very hard to prove myself time after time to give the best possible time and attention to the residents in the care centre.”

46. The appeal hearing was held on 12 February 2013 and was chaired by Ms Jenny Delic, the Human Resources Director of the respondent company. The first-named claimant attended, represented by Mr Alan Perry. Ms Delic confirmed that there had never been any disciplinary or time-keeping issues with the first-named claimant and that the matter related solely to the enhanced disclosure certificate just received by the respondent company.

The first-named claimant stated:-

“The night in question, you see, this person known to us had previously had a car accident and had got a head injury. We were trying to ask the police to leave him alone because of his head injury. It looks really bad. I’ve told people its nothing to be proud of. That’s a mistake in my entire life.”

47. The appeal was not upheld. In a letter dated 21 February 2013, Ms Delic stated that:-

“While I confirm that the TUPE transfer did apply to all employees, the company maintains its right to follow its policies and procedures. The company was not aware of the original disclosure issued to the previous company. It was only made aware of the extent of the convictions and offences after the new disclosure was received in 2012.

I explained to you that no personal judgment has been made in relation to you and that the original decision to dismiss was based on information supplied on the enhanced disclosure certificate, which does not meet the company policy.

The decision to dismiss you was not based on your conduct or performance in the workplace, but on the details of your criminal record which have recently become available to the company.

Having a criminal record will not automatically bar you from working for the company. This will depend on the nature of the position and the circumstances and background of your offences. However the company has a duty of care and a responsibility for the well-being of the service users in our care. Whilst we take into account your good behaviour since your employment at the home, we simply cannot overlook the convictions listed in your enhanced disclosure certificate. If I was to overturn the original decision to dismiss you, I would be breaching company policy and potentially would be putting service users at risk. Having considered all the information and for the two reasons stated above I feel that I cannot overturn the original decision to dismiss.”

Disciplinary process – Mr Kevin McKernan (second-named claimant)

48. The respondent wrote to the second-named claimant on 30 October 2012 inviting him to a disciplinary hearing on 5 November 2012. That letter set out the reasons for the hearing:-

“A serious and extensive criminal record identified is a recent Access NI disclosure requested by the company as a routine exercise.

Breach of company policy.

Severe loss of trust and confidence.”

49. The respondent wrote again to the second-named claimant on 2 November 2012 adding an additional ground for the hearing, ie:-

“potential reputational damage to the company”;

and changing the hearing to 12 November 2012.

50. The investigatory meeting was again held on 6 November 2012 even though it had already clearly been decided at that stage that the matter should be proceed to discipline. The investigatory hearing proceeded was heard by Ms Debra Hawthorne. The second-named claimant was in attendance but was not represented. As with the first-named claimant’s case, Ms Hawthorne was not given a copy of the enhanced disclosure certificate and was not told the details of what was on that enhanced disclosure certificate or how she was to proceed. As with the first-named claimant’s investigatory meeting, the tribunal does not understand the purpose of this meeting or why it was held since arrangements had already been made for a disciplinary hearing.

51. In the course of the investigatory meeting, the second-named claimant stated that in relation to the 2005 incident, the four convictions were all related to one night and that:-

“We were out in Armagh and were waiting on a taxi coming there was a fella getting hit with police batons. We went over to tell the police to leave him alone as he was recovering a head injury, the police then turned on us.”

In relation to the 2002 incident, he stated:-

“In 2002 taking a car without permission – it was Debbie’s car and she knew about it but if she had said she did give permission she would also have got points.”

He also stated:-

“In 1998 – criminal damage – I was in a police cell and needed to go to the toilet so I urinated over the floor and was damage to PSNI property.”

He also stated:-

“Arson – I got 150 hours community service, I was in the wrong place at the wrong time, some other group of lads lit the back of a jeep and shouted run and stupidly enough I ran with them.”

52. He stated:-

“Looking through these dates it was about six years since and I’ve changed, how can you get on in life when these keep on coming up.”

The second-named claimant confirmed that he had told Southern Cross about these convictions but did not know why he would have to tell any one in the respondent company when they had already been disclosed to his employer and should be in the respondent’s files.

53. The disciplinary hearing took place on 3 December 2012 chaired by Caron Conroy. The second-named claimant was in attendance represented by Mr Alan Perry.

The second-named claimant confirmed that he had disclosed the convictions with two managers, ie Mr Hart and Ms Clarke. Ms Conroy stated:-

“I would not employ you, no disrespect to you, I cannot comment on what Southern Cross done.”

This was at an early stage of the disciplinary meeting and indicates that Ms Conroy had already decided on the outcome.

54. The second-named claimant was dismissed by letter dated 6 December 2012. That letter stated:-

“You were made aware that it is company policy that the business does not employ people with criminal convictions and that although you had brought this to the attention of Southern Cross it had only just come to the attention to Countrywide Care Homes during a routine audit.

I have had to take into consideration the reputation of the company on reaching my decision as I feel that if the relatives and the general public are aware that the business employ staff with criminal convictions of assault, disorderly behaviour, obstructing and resisting the police and arson, the name of the company would seriously be brought into disrepute. Therefore in the best interest of the service users, the trust that service users, family members place with us and the reputation of the company I felt there was no option than to dismiss you from the home on the grounds of some other substantial reason and therefore you will be paid up to and including 6 December 2012 and four weeks in lieu of notice.”

55. The second-named claimant appealed against that decision on 11 December 2012.

56. The appeal hearing was heard on 12 February 2013 by Ms Jenny Delic. The second-named claimant attended represented by Mr Alan Perry.

Ms Delic confirmed that she had no problem with the second-named claimant as an employee other than with the enhanced disclosure certificate.

57. The respondent wrote to the second-named claimant on 21 February 2013 rejecting the appeal. That letter confirmed that the decision to dismiss the second-named claimant was not based on his conduct or performance in his employment but solely on the details of the criminal record which had been produced in the enhanced disclosure certificate and which pre-dated the commencement of his employment and which had previously been disclosed to Southern Cross.

The letter stated:-

“Having a criminal record will not automatically bar you from working for the company. This will depend on the nature of the position and the circumstances and background of your offences. However the company has a duty of care and our responsibility for the well-being of the service users in our care. Whilst we take into account your good behaviour since your employment at the home, we simply cannot overlook the convictions listed on your enhanced disclosure certificate. If I was to overturn the original decision to dismiss you I would be breaching company policy and potentially would be putting service users at risk. Having considered all of the information and for the two reasons stated above I feel I cannot overturn the original decision to dismiss.”

Decision

58. The first issue for the tribunal to determine is whether the dismissal of one or both claimants was for a reason connected with a relevant transfer that is not an economic technical or organisational reason entailing changes in the workforce – see Regulation 7(1)(b) of the 2006 TUPE Regulations.

59. The sole reason for the dismissals was the contents of the enhanced disclosure certificates received by the respondent in October 2012. There was no complaint about the claimants’ work or about any other matter.

60. The respondent company took over some (33) of the homes operated by Southern Cross in the United Kingdom. The respondent company was set up for that purpose and is a sister company of Maria Malliband PLC who previously operated different care homes in the United Kingdom and which continued to do so after the setting up of the respondent company.

61. The respondent company waited some 10 months after the relevant transfer before commencing the ‘audit exercise’ of seeking enhanced disclosure certificates for all transferred staff. It took that amount of time because of organisational and financial reasons. The audit exercise was restricted to transferred staff from Southern Cross. The staff at the existing homes conducted by the sister company continued to be submitted for enhanced disclosure certificates in the normal way, in accordance with company policy, when either three or five years had elapsed since their last certificate, or immediately on recruitment.

62. There has been no evidence of any ETO reason entailing changes in the workforce.

63. The tribunal therefore concludes that this is a situation where the dismissals were for a reason ‘connected with’ the relevant transfer, which was not an ETO reason as defined, and therefore automatically unfair.

64. The tribunal has considered the issue of contributory conduct on the part of the claimants but has concluded that there has been no such conduct. The claimants did not cause or provoke the audit exercise. They did not commit any further offences or cause any adverse incidents other than the stale offences which had already been disclosed and discussed some four years earlier. It would not be appropriate to reduce compensation.

65. If the tribunal is incorrect to conclude that the dismissals were automatically unfair for the purposes of Regulation 7(1)(b) of the 2006 Regulations, the tribunal concludes in any event, and in the alternative, that the dismissals were unfair for the purposes of Article 130 of the 1996 Order.

66. The two claimants had clearly transferred from Southern Cross to the respondent in a relevant transfer for the purposes of the TUPE Regulations. That has never been in dispute and is in any event obvious. The respondent, as transferee, inherited the two claimants as employees on their existing contracts and on their existing terms and conditions of employment.

67. What the respondent did in this case was to retrospectively re-open the recruitment and enhanced disclosure processes which had been previously conducted and completed by Southern Cross some four years earlier. The new enhanced disclosure certificates produced nothing additional to that which had already been disclosed to the transferor and there were no complaints (quite the reverse) about the claimants’ work. There was no ‘substantial reason’ which could have amounted to a potentially fair ground for the dismissal.

68. It is clear that the respondent acted from the best of motives and that Ms Conroy and Ms Delic sought to apply what each perceived to be the recruitment policies of the respondent, and indeed of its sister company. However the good intentions of Ms Conroy and Ms Delic do not make their actions legally correct, or, to the extent that it matters, amount to an accurate application of the respondent’s policies.

69. The basis of the TUPE Regulations and of the underpinning Acquired Rights Directive is that a transferee, in a relevant transfer, takes on transferred employees as they stand. Their employment is protected and, without some new or intervening issue, cannot be re-opened. It would render the Directive and Regulations nugatory if a transferee were to be entitled to screen all or any of the transferred employees and to re-make earlier recruitment decisions, selecting some employees for dismissal.

70. It is clear that Southern Cross could have initially refused to accept either claimants’ job application forms in 2008 because they had not been fully completed. It chose not to do so. It is also clear that Southern Cross could then have dismissed the second-named claimant for his failure to properly disclose all his convictions in his job interview with Mr Hart. It chose not to do so. It is also clear that Southern Cross could have dismissed either employee on receipt of their original enhanced disclosure certificates. It chose not to do so, having interviewed both claimants and before issuing formal contracts of employment.

71. For the avoidance of doubt, we should say that if either claimant were to apply for employment with the respondent as new recruits, rather than to seek to continue employment as transferred employees, the respondent may well refuse to appoint them, if it chose to do so, on the basis of their convictions, even though those convictions had occurred some time in the past.

72. The performance of both claimants during their employment since 2008, by Southern Cross and latterly by the respondent, was apparently entirely satisfactory. The second-named claimant was promoted to head chef and the first-named claimant was given additional responsibility on a bank of casual care assistants providing personal care.

73. Even if the interpretation of the respondent’s policy by Ms Conroy and Ms Delic were accurate, and even if there had been a potentially fair reason for the dismissal, the tribunal is satisfied that no reasonable employee, acting reasonably, could have done what they did and that no reasonable employer acting reasonably could have dismissed the claimants in these circumstances by disregarding the respondent’s clear obligations as transferee under the TUPE Regulations.

74. The respondent’s representative submitted, on behalf of the respondent, that the circumstances surrounding the takeover of some of Southern Cross homes had been an emergency. They had had to move quickly. That does not explain why the respondent waited a further 10 months before seeking enhanced disclosure certificates for the transferred staff, including the two claimants. It is, in any event, beside the point. TUPE does not provide an exception where there is a hurry or where there is an emergency. It was entirely up to the respondent to conduct such checks as it deemed appropriate on the employees of Southern Cross before contractually binding itself to the transfer. If it did not do so, it must take the consequences.

75. The tribunal has heard a great deal of argument about whether or not Ms Conroy and Ms Delic applied the policy of the respondent correctly and whether they considered, adequately or at all, the nature of the convictions which had originally been disclosed to Southern Cross in 2008 and which had been disclosed again to the respondent more than four years later. This is irrelevant. Even if they had given the nature of the convictions active consideration in terms of mitigation, they, on behalf of the respondent, would still have been acting entirely unreasonably by re-opening a recruitment process which pre-dated the TUPE transfer.

76. That said, it seems clear that, with the exception of the investigatory meeting conducted by Debra Hawthorne in relation to each claimant, there had been no detailed discussion of the nature of the convictions. It also seems clear that the discussion in that investigatory meeting of the nature of the convictions was prompted by the claimants and that Ms Hawthorne had not been specifically tasked to explore mitigation.

77. The tribunal unanimously concludes that the dismissals were both automatically and substantively unfair with no contributory conduct

Remedy

78. There was no evidence from either party in relation to reinstatement or re-engagement although the claimants had indicated in their claim forms that this was the remedy that they sought. It was not raised in the cross-examination of any witness. It was raised by the tribunal at the conclusion of submissions. The matter was left to the tribunal. In the absence of evidence the tribunal does not intend to pursue this matter further. However, given the circumstances of the cases and the further employment or partial employment of the claimants it is unlikely to have been a practicable option. Compensation appears to be the appropriate remedy in both cases.

First-named claimant – Debbie McKernan

79. The first-named claimant commenced employment on 6 May 2008 and was dismissed on 6 December 2012. She had four completed years of service and a gross weekly wage of £237.00. She was aged 32 at dismissal. Her basic award is therefore:-

£237.00 x 4 = £948.00

80. The first-named claimant actively sought to mitigate her loss by finding alternative work. She obtained work on 13 March 2013. Her net weekly wage with the respondent had been £209.83. She had received four weeks’ notice pay. Her net weekly wage from 13 March 2013 was £192.91, a net weekly loss of £16.92.

81. The schedule of loss indicates that she did not claim benefits on her own behalf. These were included in the second-named claimant’s benefit claim and can be addressed in relation to a recoupment notice in respect of his tribunal award.

82. The tribunal has considered the current job market and the first-named claimant’s efforts to secure alternative employment. It is also aware that awards cannot be open-ended and must reflect a realistic period of loss. The tribunal has therefore concluded that it would be appropriate to award compensation for financial loss for the period up to the tribunal hearing and for a further 52 weeks. The tribunal concludes that it is more probable than not that the claimant will have found equally paid employment in that time.

83. The first-named claimant’s compensatory award is therefore:-

29 weeks (up to 29 July 2013) x £209.83 = £ 6,085.07

52 weeks x £209.83 = £10,911.16

£16,996.23

Less further employment from 13 March 2013 –

71 weeks x £192.41 = £13,661.11

Initial compensatory award = £ 3,335.12

Less four weeks’ notice pay –

£209.83 x 4 = £ 839.92

£ 2,495.20

Plus loss of statutory rights = £ 500.00

Final compensatory award £ 2,995.20

84. The first-named claimant is therefore awarded a basic award of £948.00 together with a compensatory award of £2,995.20 – totalling £3,943.20.

Second-named claimant – Kevin McKernan

85. The second-named claimant commenced employment on 6 May 2008 and was dismissed on 6 December 2012. He had four completed years’ service and had a gross weekly wage of £300.00. He was aged 32 at dismissal. His basic award is therefore:-

£300.00 x 4 = £1,200.00

86. The tribunal has examined the relevant documentation and has considered the second-named claimant’s evidence. It is satisfied that the claimant has properly sought to mitigate his loss by finding alternative work. He found a brief period of work in Crown Buildings in Dungannon between 18 February 2013 and 14 June 2013 on a part-time basis totalling £94.50. He has also worked from 12 June 2013 to the present date as a relief cook for eight hours per week at £6.71 per hour. That totals £53.68 per week. He received four weeks’ notice pay from the respondent. He claimed benefit from 12 December 2012 to 19 March 2013.

87. The tribunal, for the reasons set out above, has concluded that it should award compensation for the period of 29 weeks up to the date of the tribunal hearing and for 52 weeks thereafter. The tribunal has noted that the second-named claimant has an interview for further hours in the near future. However, there is no certainty about this interview in terms of the number of additional hours available or the chances of the second-named respondent being successful. The tribunal must take this into account, together with its knowledge of the local labour market, in reaching a fair period of future loss.

88. The second-named claimant’s compensatory award is therefore:-

29 weeks (up to 29 July 2013) x £252.68

(net weekly wage) = £ 7,327.72

52 weeks x £252.68 = £13,139.36

£20,467.08

Less further employment of £94.50 = £ 94.50

£20,372.58

Less further employment of £53.68 x 58 = £ 3,113.44

Initial compensatory award £17,259.14

Less four weeks’ notice pay – 4 x £252.68 = £ 1,010.72

£16,248.42

Plus loss of statutory rights = £ 500.00

Total compensatory award £16,748.42

89. The second-named claimant is therefore awarded a basic award of £1,200.00 and a compensatory award of £16,748.42 – totalling £17,948.42.

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

Recoupment

91. In relation to the second-named claimant the parties are referred to the recoupment notice attached to this decision which requires the respondent to withhold part of the award pending the recoupment of social security benefit.

In accordance with the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996:-

(i) the monetary award in full is £17,948.42

(ii) the prescribed element is £ 6,317.00

(iii) the relevant dates are 6 December 2012 and 2 August 2013

(iv) the amount by which the monetary award exceeds the prescribed element is £11,631.42

Vice President:

Date and place of hearing: 29 – 30 July 2013; and

2 August 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 >> McKernan v Country Care Homes Ltd Country Care Homes Ltd [2013] NIIT 438_13IT (15 August 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/438_13IT.html Cite as: [2013] NIIT 438_13IT

Industrial Tribunals Northern Ireland Decisions