Kissward v Around A Pound Limited [2015] NIIT 00420

THE INDUSTRIAL TRIBUNALS

CASE REF: 420/15

CLAIMANT: Jonathan Kissward

RESPONDENT: Around A Pound Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and that he is not entitled to a remedy either in respect of the respondent’s failure to provide him with an initial statement of employment particulars or for breach of contract due to failure to pay him notice pay.

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr J Boyd

Mr T Carlin

Appearances:

The claimant was represented by Mr S Magee, Barrister-at-Law, Volunteer representative, Legal Support Project.

The respondent was represented by Mr P O’Kane, Solicitor of McShane and Company Solicitors.

THE CLAIM

1. The claimant claimed that he had been automatically unfairly dismissed by virtue of Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). In the alternative, he contended that he was unfairly dismissed in accordance with the provisions of Articles 126-130 of the Order. The claimant also contended that the alleged gross misconduct was not the real reason for his dismissal, that the respondent had failed to provide him with an initial statement of employment particulars and that his contract of employment had been breached. However, any claim for holiday pay was withdrawn from before the tribunal. The respondent denied the claimant’s allegations in their entirety.

THE ISSUES

2. The issues before the tribunal were:-

(1) What was the reason for the claimant’s dismissal?

(2) Was the claimant unfairly dismissed?

(3) Did the respondent fail to provide the claimant with an initial statement of employment particulars?

(4) Did the respondent breach the claimant’s contract of employment by failing to pay him notice pay?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant, and on his behalf, from
Mr Patrick McMahon Solicitor. On behalf of the respondent, the tribunal heard evidence from the claimant’s line manager, Damien O’Hare, from Gerard Rice, Company Director, and from Emma Marmion, Independent Human Resources Consultant of Prestige Business Solutions Ltd who heard the claimant’s appeal against dismissal. The tribunal was also assisted by a bundle of documentation and other documentation presented to it in the course of the hearing.

4. (i) During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) - 2009 NICA 47.

In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”

(ii) The claimant’s representative also contended before the tribunal that the minimum statutory disciplinary procedures had not been complied with by the respondent and that his dismissal was automatically unfair.

(iii) The minimum statutory disciplinary procedures (“DDP”) as set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 provide as follows:-

″Step 1: statement of grounds for action and invitation to meeting

1.‒(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2.‒(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless‒

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3.‒(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision″.

FINDINGS OF FACT

5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed by the respondent from 2005 until the effective date of termination of his employment on 15 December 2014. It was agreed between the parties that he had nine years full service with the respondent and that his weekly gross pay was £307.11 (£263.11 net).

(ii) The claimant was notified of the outcome of a disciplinary hearing on 16 December 2014 in the following terms:-

“Dear Jonathan

Disciplinary Hearing

I refer to the disciplinary hearing, which was held on Monday 15 December 2014 at 10am in Around a Pound, Head Office.

Present at the hearing were Damien O’Hare and myself. You were given the opportunity of being accompanied by a work colleague of your choice or accredited trade union official. You were not accompanied to the meeting.

The hearing had been arranged to discuss alleged breaches of the organisation disciplinary rules:

· An allegation of deliberately ignoring safety and security rules and thereby putting at risk one’s own or another’s physical wellbeing or safety namely by smoking inside the warehouse (Gross Misconduct)

· An allegation of breach of our Fire Safety rules namely by smoking inside the warehouse (Major Misconduct)

· An allegation of Smoking in a prohibited area namely by smoking inside the warehouse (Major Misconduct)

You were given every opportunity to explain and account for your actions.

The meeting was adjourned and scheduled to reconvene 15 minutes later. This provided me with time to fully consider the facts presented and I gave my decision as follows:

· You admitted in the investigation meeting on Friday 12^th December to smoking in the main warehouse. You further admitted that the Fire Door was closed when you were smoking. In the meeting you denied this admission.

· I referred to the witness statement of Damien O’Hare your Line Manager; that he had seen you smoking. In the meeting you said that Damien was lying in relation to this.

· You claimed that this must be a new rule, but I have considered there are no smoking signs clearly evident throughout the warehouse site that indicated that this is a No Smoking Zone and demonstrates clearly where the smoking zone is at the site.

· You have failed to provide any mitigating factors.

At Around a Pound we take our commitment to our No Smoking Policy very seriously. This is due to the fire that took place in our Newry store in 2010, of which you are aware, and the serious loss and potential injury this could have caused to staff.

I further give consideration to our Fireworks Licence, also of which you are aware, that indicates that there is Strictly No Smoking in the Warehouse, and the impact this could have caused to staff and stock.

I am satisfied that you were aware that this site was a No Smoking Site - given the signs that are located throughout the site.

I believe that you deliberately ignored and breached this health and safety rule without any consideration to the Health and Safety risk you placed not only yourself but to other staff members.

I consider your actions to be gross misconduct and, having considered all alternatives, I have decided to summarily dismiss you with immediate effect (from Monday 15^th December 2014.)

I will arrange for your P45 to be forwarded to you in due course, together with payment for any outstanding holiday that you have accrued.

You have the right to appeal against my decision. This should be made in writing, addressed to Siobhan Rice, Owner within 5 working days from the receipt of this letter, stating your reasons for the appeal.

Yours sincerely

Gerard Rice

Owner”

(iii) It was the claimant’s contention, supported by Mr McMahon’s evidence, and by the letter of appeal against dismissal drafted by Mr McMahon, that the real reason for his dismissal was linked to a visit by Mr McMahon to the respondent’s premises at around 10.00 - 10.15 pm on Friday 12 December. This followed a complaint made to Mr McMahon by the claimant that certain confidential information about private family matters was being discussed in the workplace, which the claimant thought had been leaked by Mr McMahon’s office. The claimant maintained this view throughout his evidence before the tribunal. He did not accept Mr McMahon’s conclusion in correspondence to the claimant dated 12 December 2014 (reproduced at (vi) below) that he was “100% certain that no information has come from our firm”. He also claimed that the disciplinary process was a sham and an excuse to get rid of him, and that there was a conspiracy against him.

(iv) Mr McMahon had attempted to contact Gerard Rice on the morning of 12 December. However he was not present in the particular warehouse premises owned by the respondent. Mr McMahon was on his way to his office in Lurgan and was clearly concerned about the serious complaint made by the claimant. In the absence of Gerard Rice, he visited the warehouse premises and spoke to Damien O’Hare, the warehouse manager, who assured him that the source of the information was not Mr McMahon’s office. The conversation with Mr O’Hare was brief and friendly and Mr McMahon was reassured in his own mind that he had no longer any reason to be concerned. He had also spoken to his secretary about the situation. She denied having been responsible for the leakage of any information about the claimant’s private affairs from Mr McMahon’s office.

(v) Mr McMahon was concerned that Gerard Rice would be annoyed if he knew that he had called at his premises and had spoken to Damien O’Hare about his client’s complaint. At some point between 12.00 and 12.30 pm on 12 December Mr McMahon telephoned Gerard Rice to tell him what had happened. Again, as with the conversation involving Damien O’Hare, the atmosphere was cordial.

(vi) The tribunal was shown correspondence, (on which privilege had been waived by the claimant), dated 12 December 2014 from Mr McMahon to the claimant. A copy of this correspondence was not produced by the claimant at any stage during the disciplinary hearing. It emerged later at the appeal hearing. It states as follows:-

“Dear Sir

Re: Matrimonial

I write to confirm today’s events. You called with me this morning because you were concerned that information from this office was being conveyed to individuals at your place of work. In particular, you told me that Damien O’Hare made comments to you last week, containing information which you are convinced that came through this office. After you left the office this morning, I went out to the premises of Around a Pound and spoke to Damien O’Hare at approximately
10.25 am. I explained what you told me. He assured me that while he had information about your family circumstances, that information had not come from our office. He told me that he knew other individuals, unconnected with our firm, who had given him the information.

As a result, I am 100% certain that no information has come from our firm. I trust we can continue as before. I am willing to meet you to discuss the matter again if you require.

There is one other matter which I need to mention to you. I spoke to
Mr Rice just before lunch-time today, to make him aware of why I have been speaking to Mr O’Hare. Mr Rice did mention to me that, while he had been happy with your work in the past, this was no longer the case. He also told me that there might be redundancies coming, due to the poor economic climate at the moment and that you might be a candidate for a redundancy. I would therefore urge you to ensure that you do not provide your employer with any reason to see you as a candidate for redundancy in the near future.

Yours faithfully

Patrick McMahon LL.B.”

(vii) There was a direct conflict of evidence between Mr Rice and Mr McMahon concerning the accuracy of the contents of the last paragraph of the above correspondence from the third sentence onwards. The tribunal is satisfied, on balance, that Mr McMahon’s evidence is to be preferred on this point. The tribunal considered this correspondence carefully in relation to the claimant’s contention about the real reason for his dismissal.

(viii) Mr McMahon was acquainted, on a personal basis, with Gerard Rice, his wife, and Damien O’Hare, and clearly wished to avoid any involvement in the claimant’s tribunal case against the respondent. He had therefore advised the claimant to seek alternative representation on this particular issue. Nonetheless, Mr McMahon clearly remained available to advise the claimant and drafted a letter of appeal against his dismissal by the respondent. The tribunal is also satisfied that Damien O’Hare and Gerard Rice knew something of the claimant’s private family affairs through third parties from at least August 2014. It also accepts that there was a conversation on 10 December 2014 between certain employees, including Damien O’Hare, which gave rise to the claimant’s belief that information had been leaked to Damien O’Hare by someone in Mr McMahon’s office. It also appears that on 11 December 2014 Damien O’Hare had a further conversation with the claimant bearing upon certain family matters. Another member of staff, David Bagnall, had approached Damien O’Hare and advised him to watch what he said before the claimant as he, (the claimant) was saying that Damien O’Hare and Rodney McCann were discussing his private life in the office. The claimant was clearly very upset as a result of his conversation with Damien O’Hare on 11 December.

(ix) Although the precise times are difficult to establish, the tribunal is satisfied that having spoken to the claimant in the course of working in the loft in the respondent’s warehouse shortly after Mr McMahon’s visit at around 10.00 to 10.15 am on 12 December, Damien O’Hare told the claimant of the fact of Mr McMahon’s visit but did not go into any other further details.

(x) The tribunal was assisted by a map of the respondent’s warehouse which shows a designated smoking area at a distance of 60 feet from one end of the warehouse (of which the claimant denied any knowledge), where there is a fireworks store, a retail storage area, another area described as the firework office, and a firework sales area. Between this area and an open area at the other end of the warehouse, which contains a loft for the storage of toilet rolls, and, on occasions, other items in the open area, there is a pallet racking area full of goods up to roof level at a height of 30 to 40 feet comprising 5 to 6 sections. There are also two fire exit doors situated at the end of the warehouse, one of which is at the far end of the open area. The tribunal was also shown a series of photographs relating to the designated smoking area and to no smoking signs placed around the premises. These photographs did not include the particular fire exit door referred to in the disciplinary proceedings.

(xi) At around 10.30-10.45 am on 12 December 2014, Damien O’Hare was standing in the open area not far from the fire exit door at the far end. He alleged that he saw the claimant smoking inside the open area with his back to the fire exit door, which was closed. Damien O’Hare also alleged that the claimant then threw the remainder of the cigarette outside and later threw it over a five foot wall into a puddle of water. The respondent’s evidence was that during the course of an investigatory meeting involving the claimant, Damien O’Hare, and Gerard Rice (at around 1.00 pm on 12 December in Gerard Rice’s office), the claimant admitted to smoking in the open area with the fire door closed. This is recorded in notes of that meeting. There is no record in the notes however of the claimant having apologised at the end of the investigation meeting as claimed by Gerard Rice. The notes end with the words - “Jonathan thanked me and left”.

(xii) The claimant’s case during the disciplinary hearing held at around 10.00 am on Monday 15 December, was that he was smoking outside the premises with the fire door open. He alleged that other employees, including Damien O’Hare, had also smoked in the area. Damien O’Hare denied this. It was also clear to the tribunal that Gerard Rice had obtained advice and guidance on an ongoing basis at the investigatory meeting stage and onwards from Emma Marmion, who eventually heard the claimant’s appeal. However the tribunal was satisfied that Emma Marmion was not compromised by her ongoing advice and guidance to Gerard Rice. In particular, she did not engage in a discussion on the merits of the case. She was not made aware at this stage of the employee’s name but only that he had been caught smoking inside the premises. Gerard Rice was made aware of the three step statutory procedure. When the claimant denied the charges against him at the disciplinary hearing on 15 December, Gerard Rice again contacted Prestige Business Solutions Ltd and spoke to Emma Marmion in relation to the conflict of evidence which had emerged.

(xiii) It also appears from Mr McMahon’s evidence before the tribunal that the claimant contacted him on 12 December and instructed him that he had been sacked. Again, after his dismissal for the reasons specified in the disciplinary outcome letter reproduced previously in this decision, the claimant consulted Mr McMahon who drafted an appeal letter dated 23 December 2014 which includes the following:-

“I have only ever smoked outside the warehouse. Other staff do this also, including Damien O’Hare. I believe that Damien O’Hare is inventing this allegation against me because my Solicitor had just called with him a short time earlier about a complaint I had made to my Solicitor about Damien O’Hare knowing my legal business.

I believe it is not right for Damien O’Hare to be a witness against me and also to be part of the decision to dismiss me.

Before dismissing me [Mr] Rice told me if I admitted to smoking inside, I would not be sacked.

I think I am [being] treated unfairly due to race”.

(xiv) After the investigatory meeting held on 12 December, the claimant was told to attend another meeting at 10.00 am on Monday 15 December. Counsel for the claimant put to Gerard Rice that the correspondence dated 12 December 2014 specifying the charges for the disciplinary hearing, was not received prior to the hearing and that this correspondence together with the disciplinary outcome letter arrived together in the post.

(xv) The respondent denied that the two items of correspondence had been sent out together. The tribunal however found the claimant’s evidence unconvincing on this issue. He was also unconvincing and vague in other parts of his evidence. The tribunal was however mindful of his claim that he had difficulty in reading English and writing in English. In his letter of appeal, dated 23 December 2014, and in his evidence before the tribunal, the claimant was clear that he received the disciplinary outcome letter on 19 December 2014. When he was asked, in cross-examination if he had ever received the respondent’s correspondence of 12 December, he stated that he could not remember. The tribunal is satisfied that the claimant’s evidence lacks credibility and contradicts what was put by his Counsel to Gerard Rice under cross examination, that both letters had been received together in the post. The tribunal is satisfied, on balance, that the correspondence relating to the disciplinary hearing on 15 December 2014, was posted by the respondent on 12 December 2014. It appears that at the appeal stage, Emma Marmion postponed the hearing when she discovered that the reason for the claimant’s non appearance was that the notification letter sent by registered post was not successfully delivered to his address and had not been collected by him at the Post Office. No issue in relation to non receipt of the respondent’s correspondence of 12 December 2014 was raised by the claimant, either in his letter of appeal, or at the appeal hearing itself.

(xvi) Although neither Damien O’Hare nor Gerard Rice themselves displayed familiarity with its contents the tribunal is satisfied that an Employee Handbook was available in the premises for employees to consult. The tribunal is not however satisfied on the evidence before it that the claimant received an initial statement of employment particulars or a written contract from the respondent.

(xvii) The tribunal was also directed to the respondent’s disciplinary policy which contains, under the heading of “major misconduct”, the following:-

“Serious neglect of safety/hygiene/safety rules

Smoking in prohibited areas”.

Gross misconduct includes:-

“Deliberately ignoring safety/hygiene/security rules and thereby endangering one’s own or another’s physical well-being or safety”.

(xviii) The tribunal also carefully considered the relevant documentation placed before it from the investigation meeting stage until the completion of the disciplinary and appeal process, which it viewed as a whole. It is clear that Emma Marmion conducted a thorough and fair appeal and gave the claimant every opportunity to articulate his case. However in many instances he replied with “no comment” to the questions she posed. The claimant’s explanation that he answered “no comment” because he did not have a witness with him lacks credibility in light of the opportunity afforded him to be accompanied by a work colleague or an accredited trade union official.

(xix) The tribunal considers it necessary to set out the appeal hearing outcome letter as follows:-

“Dear Jonathan

Formal appeal hearing - outcome

I refer to the disciplinary appeal hearing held on 20 January 2015 at 10am in Prestige Business Solutions Ltd.

Present at the hearing were you, Emma Marmion (Objective HR Consultant), and a note taker. You were given the opportunity of being accompanied by a work colleague of your choice or an accredited trade union official, which you declined.

The hearing had been arranged to consider your appeal against the decision to Dismiss you from your role at Around a Pound, where it was upheld that you deliberately ignored and breached a health and safety rule that placed not only yourself but other staff at risk.

You were given every opportunity to explain why you were appealing against the decision of the disciplinary hearing.

After an adjournment, which has given me time to properly consider your grounds for appeal and carry out further investigation, I confirm my decision as follows:

I have considered carefully all the facts presented and listened to and taken account of your comments.

In mitigation, you said that you were not smoking inside. You said that you were smoking outside the warehouse and that when Gerard Rice asked you in the investigation meeting of 12.12.14 if you were smoking that you had misunderstood what he meant. In my investigation I reviewed the account of the Investigation meeting, I further questioned all parties who were present at the investigation meeting and on all accounts I found that you were specifically asked if you were smoking inside the warehouse to which you answered yes. My investigation found that the other parties confirmed that you were asked this on at least 3-4 occasions, and that your response on each account was yes. It is my opinion that there could have been no misunderstanding as to what was meant by the questioning on that day and there was no other evidence provided to prove otherwise.

In mitigation, you referred me to your letter of appeal. In your letter you said that it was your belief that Damien O’Hare had invented the allegation of smoking in the warehouse against you because your solicitor had called with him a short time before the incident about a complaint you had made about Damien O’Hare knowing your legal business. There were no further points made by you in relation to this belief or why you felt this was the case. My investigation found that the decision to dismiss was not based on this belief or occurrence. I am satisfied that the matter was dealt with properly and thoroughly at the investigation meeting and disciplinary hearing and it was based on the findings of these that the outcome was reached.

In mitigation you referred me to your letter of appeal. In your letter you said that it was your belief that it was not right for Damien O’Hare to be a witness against you and also for him to be part of the decision to dismiss you. My investigation found that Damien O’Hare is a senior manager within the business whose responsibility it is to ensure that the rules of Around a Pound are adhered to. My investigation found that upon witnessing the alleged incident that he informed the Owner, as his role would expect him to do so. I am satisfied that the matter was dealt with properly and thoroughly at the investigation meeting and disciplinary hearing and that you had the opportunity to challenge the allegations being made by Damien O’Hare. I found that in the investigation you were specifically asked if you were smoking inside the warehouse to which you answered yes. My investigation found that the decision to dismiss was made by the owner of the company alone - Gerard Rice and that Damien O’Hare was not [a party] to that decision to dismiss.

In mitigation you referred me to your letter of appeal. In your letter you said that Mr Rice had told you that if you admitted to smoking inside that you would not be sacked. In my investigation I reviewed the account of the Investigation meeting and saw no evidence of this. There was no further points made by you in relation to this. There was no other evidence provided to prove otherwise.

In mitigation you stated in your letter that you believed that you had been treated unfairly due to your race. You did not provide any further information to support this belief. I did not find any evidence to support your belief and found that the decision of the disciplinary meeting was reached on the basis of the findings of the investigation and the disciplinary meeting.

In mitigation you provided a letter from your Solicitor Mr Patrick McMahon. In this letter Mr McMahon refers to a conversation between Mr Rice and himself. Mr McMahon refers that Mr Rice had mentioned to him that while he had been happy with your work in the past this was no longer the case. Mr McMahon also stated that Mr Rice had said that there might be redundancies coming, due to poor economic climate at the moment and that you might be a candidate for redundancy. My Investigation found that the decision to dismiss was on the grounds of the investigation of the incident where you admitted that you were smoking, and the disciplinary hearing that followed. I found that consideration was given to the extent of the risk of smoking inside the warehouse, and that where you had been alleged to be smoking, and where you admitted that you were smoking, was in the immediate vicinity of highly inflammable materials namely 40 pallets of toilet roll were above you, 40 pallets of crisps were nearby as well as aerosols and other paper based products. There was no evidence to suggest otherwise.

I am satisfied that the matter was dealt with properly and thoroughly at the disciplinary hearing and that the correct decision was made at the hearing and consequently I am unable to uphold your appeal.

For the avoidance of doubt, this concludes the organisation’s disciplinary and dismissal procedure and no further stages are available to you.

Yours sincerely

Emma Marmion

HR Consultant”

(xx) The tribunal also considered the claimant’s evidence relating to his Schedule of Loss (including benefits received), mitigation of loss, and his claim that his condition of stress had been caused by the respondent’s actions and had nothing to do with the events leading up to and including a matrimonial settlement in August 2015, following which he continued to receive Employment and Support Allowance. The tribunal was not convinced by the claimant’s evidence on this issue relating to his stress having nothing to do with matrimonial matters.

THE LAW

6. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:-

“127. - (1) For the purposes of this Part an employee is dismissed by the employer if … - (a) the contract under which he is employed is terminated by the employer (whether with or without notice).”

(ii) Article 156(2) of the Order provides as follows:-

“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

(iii) The Order further provides at Article 157(6) as follows:-

“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

(iv) The law in relation to unfair dismissal in the context of misconduct is set out in Rogan as follows:-

“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.

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

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

(b) that 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.

(2) A reason falls within this paragraph if it-

…. (b) relates to the conduct of the employee,

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

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

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

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.

“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 - and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[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 section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-

(1) the starting point should always be the words of section 57(3) 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, another quite reasonably take another;

(5) the function of the 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 Homes 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, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. 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’.”

At paragraph 26 of Rogan, Morgan LCJ states as follows:-

“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.

Again at paragraph 27 of his judgment, Morgan LCJ states:-

“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

In paragraph 28 he continues:-

“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.

Girvan LJ in paragraph 7 of his judgement states as follows:-

“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”

(v) The tribunal considered Article 130A of the Order relating to automatic unfair dismissal. It also considered the requirements in relation to the statutory procedures, as set out in the Employment (Northern Ireland) Order 2003.

(vi) The tribunal considered the recent case of Adeshina c St. Georges University Hospitals NHS Foundation Trust (2015) UKEAT 0293_14_0105, in relation to remedying defects at the disciplinary stage, on appeal.

SUBMISSIONS

7. The tribunal carefully considered the helpful written and oral submissions presented by Counsel for the claimant and the respondent’s solicitor. Copies of the written submissions are appended to this decision.

CONCLUSIONS

8. The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

(i) There is no satisfactory evidence before the tribunal for it to conclude that the requirements in relation to the statutory procedures reproduced at paragraph 4(iii) of this decision have not been complied with by the respondent. There is therefore no basis for a claim of automatic unfair dismissal under Article 130A of the Order.

(ii) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

(1) Was the dismissal of the claimant by the respondent fair in all the circumstances? In determining this primary issue the Tribunal should consider the following:

(a) Has the respondent shown that the reason relied (or principal reason) relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

(b) Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

(i) Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

(ii) At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

(c) Was the dismissal a fair sanction in the circumstances?

(d) Was the claimant afforded an effective right of appeal in the circumstances?

The tribunal is satisfied that each of the questions should be answered in the affirmative and that the claimant’s claim of unfair dismissal must be dismissed.

(iii) The tribunal is satisfied in light of the foregoing conclusions that there is no basis under Article 27 of the 2003 Order for an award relating to the respondents failure to furnish an initial statement of employment particulars/ contract of the claimant.

(iv) The tribunal has a measure of sympathy for the claimant in the circumstances in which he found himself. However, it has to dismiss his claims in their entirety.

Employment Judge:

Date and place of hearing: 25-26 August 2015, 7 and 9 October 2015 and 23 October 2015, 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 >> Kissward v Around A Pound Limited [2015] NIIT 00420_15IT (09 November 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/00420_15IT.html Cite as: [2015] NIIT 00420_15IT, [2015] NIIT 420_15IT

Industrial Tribunals Northern Ireland Decisions