Hawthorn v South Eastern Health and Socia... [2015] NIIT 02699

THE INDUSTRIAL TRIBUNALS

CASE REF: 2699/14

CLAIMANT: Graeme Hawthorn

RESPONDENT: South Eastern Health and Social Care Trust

DECISION

The unanimous decision of the tribunal is that the respondent unfairly dismissed the claimant and the tribunal awards the claimant compensation of £24,639.43

Constitution of Tribunal:

Employment Judge: Employment Judge Greene

Members: Mrs D Adams

Mr J Hughes

Appearances:

The claimant was represented by Mr S Martins Esq of the Employment Law Service, Darlington, England.

The respondent was represented by Ms S Bradley, of counsel, instructed by the Directorate of Legal Services.

Sources of Evidence

1. The tribunal received evidence on behalf of the respondent from Paul Morgan, Mary Mageean, Robert Spence, Catriona Briers, Richard Barker, Timothy Sheehan, Jennifer Buchanan and Liam Hudson and on behalf of the claimant from the claimant himself, Barbara Wilson, David Gordon, and Melissa Hollywood. The tribunal received three bundles of documents amounting to 413 pages, the LRA Code of Practice, two written submissions of 39 pages and two bundles of legal authorities.

The Claim and Defence

2. The claimant claimed that he had been unfairly dismissed. The respondent denied the claimant's claim.

The Issues

3. The issues for determination were

(1) Legal Issues

(a) Unfair Dismissal

(i) Was the claimant fairly dismissed by the respondent for the purposes of Article 130 of The Employment Rights (Northern Ireland) Order 1996, namely for a reason relating to his conduct?

(ii) Was the claimant's dismissal procedurally unfair?

(iii) If the claimant's claim is upheld what compensation is he entitled to?

(iv) In respect of the claimant's claim for unfair dismissal has the claimant taken steps to mitigate his loss?

(2) Main Factual Issues

(a) What was the reason for the claimant's dismissal?

(b) Did the respondent hold a genuine and honest belief that the claimant had committed acts of gross misconduct?

(d) Was the claimant's dismissal substantially fair?

Findings of Fact

4. (1) The respondent employed the claimant from 1 November 1990 until 10 September 2014. The claimant earned per month £2,692 gross, £2011.79 net and he worked 37.5 hours per week.

(2) The claimant was based at the respondent's premises in Ards Community Hospital, Block 16, Lough House.

(3) On the ground floor of Lough House there is a staff area with offices and other facilities on either side of a corridor. One end of the corridor leads into the office and administration area and the other end of the corridor leads to a lift and stairs. Along the corridor there are three single offices, one double office, a kitchen, a seated area with three tables and up to eight chairs for eating snacks and staff toilets. The kitchen door is opposite the door to the office of Melissa Hollywood and the staff toilets. The kitchen door was wedged open most of the time. From the kitchen or door to Ms Holywood's office you cannot see into the seated area with tables.

(4) The kitchen has within it, inter alia, a microwave oven and an electric toaster and is used by staff members to prepare meals or lunch or snacks. The claimant was a regular user of the kitchen.

(5) On 3 February 2014 the claimant had gone between the office and the kitchen on at least two occasions. On this day he had heated the bowl of soup in the microwave oven on two occasions and had also visited the toilets at lunch time. He did not see anyone else when he was in the kitchen.

(6) David Gordon worked for the respondent, through the Grafton Recruitment Agency as a band 3 clerical officer, since April 2012 and was assigned to the respondent trust.

(7) Like the claimant Mr Gordon was a daily user of the kitchen, as were many other staff members, to make breakfast or morning tea or at lunchtime.

(8) The respondent did not operate a fixed lunch period.

(9) The claimant was not known to Mr Gordon by name.

(10) On 3 February 2014 Mr Gordon saw a male person, whose identity was unknown to him, in the corridor carrying a bowl with something hot in it. The person was walking towards Mr Gordon with the kitchen door behind him and to his left. Mr Gordon then went into the kitchen, noticed a burning smell, checked the microwave oven and then the toaster. He found the toaster to be switched on and it had some paper smouldering in it. Mr Gordon turned the toaster off and blew out the smouldering paper before it had caught light. The toaster was not damaged nor was there any damage to any other part of the kitchen. The toaster remained in use.

(11) Mr Gordon then reported the incident to Melissa Hollywood at her office, which is opposite the kitchen door, several feet away. Although the door to Melissa Hollywood's office was open Mr Gordon waited for some 10 minutes while Ms Hollywood was on the telephone and then related to her what he had observed.

(12) On 3 February 2014 at 13.55 pm Ms Hollywood sent an email to Paul Morgan, the Assistant Director of Finance in the respondent trust. She copied the email to a number of other individuals.

(13) She stated in the email:-

"Paul

A member of my team reported the following incident to me today at approximately 1.30 pm. The incident took place at 1.15 pm/1.20 pm.

As D was coming down the corridor to the kitchen on the Ground Floor of Lough House, Graeme Hawthorne was walking up corridor from kitchen with bowl of soup in hand. On entering the kitchen D noticed burning smell, went to microwave, toaster beside microwave but was on but nothing in it. Timer was set for three minutes on toaster, D noticed smoke, realised not bread in toaster, but long thin strip of paper, so turned off and blew out.

I went with D to the kitchen and there was still a smell of smoke.

He reported to me as soon as possible and after the event (I was on a phone call at the time David noticed).

I have sought D's permission to share this information with you.

Thanks.

Melissa"

The tribunal was not provided with any explanation as to how the claimant came to be identified as the person David Gordon saw in the corridor.

(14) Mr Paul Morgan was not at work on 3 February 2014 and became aware of the email from Melissa Hollywood on 4 February 2014 from Brian Grimley. Mr Morgan immediately set up a meeting with Jennifer Buchanan, the Assistant Director of Human Resources and Brian Grimley at 3.30 pm on that day.

(15) At that meeting three matters were discussed in which the claimant was considered to have been involved:-

(a) an incident in respect of paper being placed in a toaster which was switched on as detailed in Melissa Hollywood's email of 3 February 2014 which was the only evidence about the incident;

(b) an allegation in respect of the theft of toilet rolls, as contained in an email received on 3 February 2014 from Roisin Upritchard, which matter had been brought to Mr Morgan's attention verbally in November 2013 when he had asked for it to be investigated; and

(c) where the claimant and his line manager, Mary Mageean, had been invited to a meeting on 5 February 2014 to address Paul Morgan's concerns that flexi time and annual leave were being recorded retrospectively.

(16) At the meeting on 3 February 2014 it was decided that due to the reported incident of alleged arson, as detailed in Melissa Hollywood's email, that a precautionary suspension would be issued to the claimant in accordance with the respondent's disciplinary procedure. It was also agreed that all three matters discussed would be considered by an appointed investigator.

It is not clear how and why the email of Melissa Hollywood came to be described as a complaint about arson as opposed to an act of negligence or a breach of safety. Neither a note nor a minute of this meeting was made.

(17) By email of 4 February 2014 Paul Morgan changed the meeting scheduled for 5 February 2014 with Mary Mageean and Graeme Hawthorne, to get an explanation from them why the recording and granting of flexi leave/annual leave was being done retrospectively, to a meeting with Graeme Hawthorne and his union representative to deal with the incident of the paper in the toaster and to suspend the claimant. The scheduled meeting about flexi leave and annual leave never took place. The tribunal was not provided with any explanation how Mary Mageean moved from being someone answerable, with the claimant, for the irregularities in flexi leave and annual leave recording, to the main witness against the claimant on this point.

(18) On the afternoon of 5 February 2014 the claimant and his union representative Barbara Wilson met with Brian Grimley and Paul Morgan in relation to the incident reported in Melissa Hollywood's email of 3 February 2014 and to implement the previously agreed suspension of the claimant. Neither a minute nor a note of this meeting was made by management. Barbara Wilson made a note of the meeting.

(19) At the meeting Paul Morgan informed the claimant that he was being suspended on the ground of causing a fire/arson. The claimant states that Mr Morgan further alleged that the toaster in the kitchen was in flames, was filled full of paper and that there were two witnesses to the claimant's involvement in the incident. This account was supported by Barbara Wilson. Mr Morgan disagrees that he alleged the toaster was on fire, or was filled with paper or that there were two witnesses to the incident.

(20) The tribunal prefers the evidence on behalf of the claimant. In so concluding the tribunal had regard to these following matters:-

(a) Management did not make a note of the meeting.

(b) Barbara Wilson made a note of the meeting which supports paragraph (19) above.

(21) An incident report form was prepared, it appears by Melissa Hollywood, and dated 6 February 2014. It is signed by both David Gordon and Melissa Hollywood. The incident report records:-

"On entering the kitchen David noticed burning smell, went to microwave which is beside toaster, noticed smell, then noticed black smoke coming out of toaster. David noticed timer on toaster was set for three minutes. On looking inside toaster realised there was no bread in toaster but instead there was paper in it. (As it was already burning hard to establish size/quality of paper). David immediately switched off toaster at plug and blew out paper in toaster. He reported the incident to his manager as soon as possible".

(22) On 7 February Paul Morgan wrote to the claimant confirming his suspension. In the suspension letter he recorded that it was done by reason of a serious incident which occurred in the kitchen on 3 February 2014. The letter recorded:-

"... The nature of the incident was that you were witnessed by a member of staff leaving the kitchen, the member of staff then entered the kitchen to discover that black smoke was coming from the toaster. On closer inspection it was discovered that paper had been placed inside the toaster which was burning."

(23) When this letter was written Mr Morgan had also seen the incident report of 6 February 2014. Mr Morgan accepted, before the tribunal, that the statements in his letter of suspension that the claimant had been witnessed leaving the kitchen and that black smoke was coming from the toaster were inaccurate.

(24) Mr Morgan indicated that the suspension, which he described as precautionary, was done by reason of the seriousness of the incident. Mr Morgan said he was concerned about the risk the alleged arson posed to other staff members, patients, clients and the general public. He emphasised that suspension did not imply guilt and that the matter would be investigated as soon as possible. Neither Mr Morgan nor anyone else from the respondent reported the alleged arson to the police.

(25) Robert Spence and Catriona Briers were appointed to investigate the allegations against the claimant. The terms of reference for the investigation were set out in an email of 3 March 2014 to Mr Spence from Mr Daniel Morgan and it stated that the three areas of investigation that the investigating panel was to follow were that the claimant had:-

(1) deliberately caused a fire in the kitchen in Lough House at Ards Hospital, Newtownards, and

(2) theft, and

(3) irregularities in respect of annual leave and flexi time.

(26) Mr Spence and Miss Briers set upon investigating these matters. They compiled a report of their investigation of some 200 pages which was not ready until the end of July 2014. In relation to the charge of deliberately causing a fire (arson) in the kitchen in Lough House the investigating panel concluded:-

"The investigation panel would conclude from the evidence gathered it would indicate that Mr Hawthorne was in the vicinity of the kitchen at the time of the incident. He was witnessed walking from the kitchen at the time of the incident. Therefore on balance of probability Mr Hawthorne was responsible for deliberately putting paper in the toaster and setting the timer which subsequently created a fire."

(27) The respondent's disciplinary policy provides for suspension at Section 5d where it states:-

"The reason for suspension should be made clear to the employee and confirmed in writing. When the reason for suspension is being conveyed to the employee, where possible, he or she should be accompanied by an employee/trade union representative. Suspension is not disciplinary action, and as a consequence carries no right of appeal. The appropriate Senior Manager should consider other alternatives, for example transfer of employee, restricted or alternative duties if considered feasible and appropriate.

Any decision to precautionary suspend from work, restrict practice, or transfer temporarily to other duties must be for the minimum necessary period of time. The decision must be reviewed, by the appropriate Senior Manager, every four weeks."

There was not any evidence before the tribunal that any four weekly review took place.

(28) Section 6.2 of the respondent's disciplinary policy sets out the requirements of an investigation which are:-

"a. The Investigating Officer is responsible for establishing the facts of the case. Investigation will be concluded as quickly as is reasonable taking account of the extent and seriousness of the allegations. The Investigating Officer should meet with the employee who may be accompanied and/or represented by an employee representative. The Investigating Officer should explain the alleged misconduct to the employee. The Investigating Officer should ensure that any witnesses are interviewed and that all relevant documentation is examined before a decision is made on the appropriate course of action."

(29) The respondent's disciplinary procedure sets out 22 examples of gross misconduct. Arson or setting fire to property is not listed as an example.

Arson or setting fire to Trust property could fall within three of the examples of gross misconduct, ie breaches of safety, or misuse or unauthorised use of property, which includes damage caused maliciously or recklessly to property, or negligence. None of these breaches were alleged by the respondent.

(30) The respondent also provides the following guidance for investigating officers;-

"1. All investigating officers must read and be familiar with the Disciplinary Procedure before undertaking an investigation.

2. The investigating officer should invite the employee to a meeting regarding the investigation. Employees should be advised of the reason for the meeting and the nature of any complaint/allegation made about them if relevant. Employees must be informed of the right to bring an employee representative or a work colleague and should be given sufficient time to prepare a response. If necessary a meeting should be arranged with any witness and they should be informed of the right to bring an employee representative or a work colleague to the meeting.

3. All employees and witnesses should be made aware of the fact that the information they provide will be made available to the individual(s) involved and possibly other third parties .

4. Employee and witnesses should be made aware that they will/may be called to the hearing and can be cross-examined by all parties involved in the hearing.

5. Ask employee to take you through their understanding/version of events. Probe for detail; don't always take information at face value. Establish times, dates, witnesses and gather any supporting documents.

6. Interview any relevant witnesses or those who may be able to provide relevant information (ensuring formal meetings are arranged with each and that each is advised they can be represented).

7. Ask-Probe-Clarify. Review any relevant documents, records, clock cards etc. Take full and detailed notes. Send a copy of notes taken to each person interviewed for their signature to confirm notes are an accurate record of the discussion.

8. Re-interview any party as necessary as further evidence/information becomes available.

9. Consider visiting the location of the alleged incident if applicable to further assess the validity of information provided and get a clearer picture.

10. Ensure the conclusion of the investigation is supported by gathering substantial evidence. Record details accurately. Make sure decisions are based on facts and evidence.

11. Seek guidance from the Employee Relations team as necessary."

(31) Mr Spence and Miss Briers, prior to commencing their investigation, met with Paul Morgan on 2 April 2014 to gather background information in relation to the allegations against the claimant, despite the fact that Paul Morgan was a witness in the investigation.

(32) In preparation for the meeting Mr Spence prepared a list of facts to be determined. Interestingly one of his notes records:-

"What other evidence is available to the investigation team to suggest that GH [the claimant] was responsible for causing the fire incident".

The note also records:-

"Telephone interview with David Gordon (DG) the witness who reported the incident to his line manager Melissa Holywood (MH) and completed the IR1 on the incident."

(33) There is not a minute of this meeting of 2 April 2014. However Mr Spence made some notes of the meeting. The notes appear to show a discussion about other ongoing issues involving the claimant prior to the alleged incidents which are the subject of the investigation. The earlier information seems to be negative in relation to the claimant and the prior incidents do not appear to have anything to do with the incidents which were the subject of investigation. In addition during the meeting, which was a background meeting, Paul Morgan and Brian Grimley commented on the suspension meeting and were critical of the attitude adopted by the claimant at that meeting for what they apparently described as his failure to deny the incident arising from which he was suspended. In his witness statement Mr Morgan does not mention this meeting.

(34) The investigating panel identified eight persons to be interviewed. David Gordon, the principal witness in relation to the fire in the toaster incident, was not interviewed in person. Mr Spence's note suggests it was never intended to speak to him face to face. He was spoken to by telephone and asked to confirm that his note of the incident was correct. Melissa Holywood the second main witness for the respondent was not interviewed at all despite the fact that the investigation lasted for four months and did not conclude until July 2014. Apparently she was not available to be interviewed. The tribunal did not receive any explanation as to why she was not available.

(35) In his witness statement, at paragraph 6, Mr Spence records:-

"... I am satisfied that the email sent to Mr P Morgan from Ms M Holywood regarding the incident on 3 February 2014 that resulted in the Claimant's suspension, stated that Mr D Gordon had seen the claimant coming from the kitchen just prior to him discovering the fire."

In fact this is not what the email of Ms Holywood states.

(36) In relation to the interviews conducted by Mr Spence and Miss Briers none of the interviewees was provided with a written version of what they had said and asked to confirm its accuracy and sign it. Paul Morgan, Brian Grimley and Mary Mageean were interviewed together not individually and statements were not taken from them. There was little or no evidence of probing or testing the evidence of any of the witnesses. There appeared not to be any effort to seek evidence or information which might exculpate the claimant rather than incriminate him. The panel did not have a meeting with David Gordon, the principal witness, and indeed they did not attempt to meet him. Nor was there any probing of his evidence when he was spoken to by phone. He was merely asked to confirm what was in the email from Melissa Hollywood and what was in the IRI form. The investigators did not make any notes of their interview with David Gordon by phone. The panel never interviewed Melissa Hollywood who apparently from April to July 2014 was not available to meet them. There was therefore not any probing of her evidence. Catriona Briers accepted, in evidence to the tribunal, that with regard to the statements the investigation was neither full nor thorough.

(37) The evidence against the claimant was, in relation to the toaster incident, circumstantial. The investigating panel did not make any attempt to ascertain if there were any witnesses to the toaster being left on, or if other staff had used the kitchen that day or if any of the staff in the offices on the corridor or who may have used the toilets opposite the kitchen or who may have been in the seated eating area had seen anything or knew anything about the toaster being left on.

(38) By letter of 28 April 2014 Robert Spence requested the attendance of the claimant at an investigatory meeting on 15 May 2014 to discuss the following allegations in relation to the claimant's conduct;-

(a) deliberately caused a fire in the kitchen at Lough House, and

(b) theft of Trust property, a quantity of toilet rolls, and

(39) At the investigatory meeting with the claimant on 15 May 2014 he was accompanied by his trade union representative Ms Barbara Wilson of NIPSA. During this interview it appears that leaving the toaster on with some paper within it had become an arson incident. The claimant informed the investigating panel; that he had not used the toaster; that he was not aware of any fire in the toaster; and that he had visited the gent's toilet after heating soup in the kitchen.

(40) On 22 July 2014 the investigation report was provided to the claimant with a letter of the same date inviting him to a disciplinary hearing to consider allegations of gross misconduct. The allegations against the claimant were:-

"i. Deliberately caused a fire (Arson)

ii. Irregularities in respect of annual leave and flexi time".

The investigating panel had recommended that the allegation in relation to the theft of toilet rolls should not be pursued in view of the delay in progressing this matter. This was accepted by the respondent. The invitation letter did not comply with the LRA recommendation that it should contain the possible consequences of the formal action.

(41) The respondent has an Arson Policy. The policy incorporates the statutory definition of arson at paragraph 2.4;-

"The Criminal Damage (Northern Ireland) Order 1977 preserves the common law offence of arson and defines it as "the unlawful damage, by fire, of property belonging to another". (paragraph 2.4)

(42) The disciplinary hearing was re-scheduled to 3 September 2014. The disciplinary panel comprised Richard Barker and Anthony Trimble. Mr Spence was the presenting officer and he used his investigation report to present the investigating panel's finding on both charges to the panel. He also called to give evidence David Gordon, Paul Morgan, Mary Mageean and Brian Grimley. The claimant's representative was given the opportunity to put questions to all the witnesses as was the panel. The claimant's representative then presented the evidence on behalf of the claimant and the matter concluded with both parties having the opportunity to make submissions.

(43) The claimant and his representative made the following points to the disciplinary hearing:-

(1) That there was not a proper investigation and only interview notes were taken for the claimant and not others.

(2) That the interview of the main witness took place over the telephone and was not a personal interview.

(3) There was a difference in what was stated in the IR1 report of 6 February 2014 (from Melissa Holywood) and the email to Paul Morgan from Melissa Holywood on 3 February 2014.

(4) There were plenty of other persons using the kitchen.

(5) There was scant evidence for a fire.

(6) At the date of suspension Paul Morgan told the claimant and Barbara Wilson that two persons had witnessed the claimant coming from the kitchen, whereas at investigation Paul Morgan said only one person saw the claimant coming from the kitchen.

(44) The panel reserved its decision and before giving it visited the location of the incident in relation to the fire and the toaster. The panel did not attach any weight to the procedural failures in the investigation and letter of invite to the disciplinary hearing. Nor did the panel investigate any of the matters raised on behalf of the claimant.

(45) The disciplinary panel believed on the basis of the evidence presented, both written and oral, that there was an attempt made by the claimant to start a fire through the introduction of a paper tissue or similar material into a toaster in the kitchen in Lough House and turning it on for a period of three minutes with a view to cause combustion deliberately.

(46) The disciplinary panel did not accept the claimant's assertion that others using the kitchen could have been responsible for putting the toaster on or causing the paper to be within the toaster on the basis of the evidence of David Gordon and because neither David Gordon nor the claimant had seen anyone else entering the kitchen.

(47) The panel members concluded that the toaster incident was a malicious attempt by the claimant deliberately to set a fire using the toaster and that the only person who could have been responsible for that was the claimant. They concluded this amounted to gross misconduct and ordered that the claimant's employment would be terminated with immediate effect. The panel also awarded him pay in lieu of notice and informed him of his right of appeal.

(48) In his evidence to the tribunal Mr Barker indicated that the panel had considered but did not accept the claimant's assertion that others using the kitchen could have been responsible for switching the toaster on or putting paper into it. However the panel did not make any attempt to enquire if there were other witnesses to the incident or whether any of the people in the offices off the corridor or other staff members had used the kitchen that lunch time or if people in the eating area or people using the toilets had witnessed anything. The panel assumed the claimant's guilt because Mr Gordon said he saw no-one entering prior to him entering. There was not any consideration given to the possibility that it might have been Mr Gordon who put the paper in the toaster and switched it on. Despite failing to consider these matters Mr Barker was of the view that the claimant was the only person who could have performed the act of turning the toaster on and putting paper into it.

(49) In relation to the second charge of irregularities in the claimant's submission of annual leave and flexi leave timesheets the claimant accepted that the leave sheet was completed after the event not before and that at times he was guessing as to the leave taken by reason of the passage of time. The claimant had submitted at the disciplinary hearing that there are not proper management structures in place in order to record and ensure that a proper record of flexi time and annual leave was made. The claimant also accepted at the disciplinary hearing that he had been given advice on how to complete his flexi sheet and how to properly apply for annual leave which he had ignored.

(50) The claimant, at the disciplinary hearing, posed the question why would he attempt to set the toaster on fire and thereby endanger everyone in the building when his wife worked upstairs in the same building.

(51) At the disciplinary hearing the claimant's representative, Ms Wilson, stated that Mr Spence had not investigated the difficulties in the relationship between the claimant and others by reason of previous complaints. The disciplinary panel did not attempt to seek clarification as to the meaning of this in relation to the charges faced by the claimant.

(52) At the disciplinary hearing Barbara Wilson, on behalf of the claimant, challenged the adequacy of the investigation carried out into the charges against the claimant. The claimant gave a chronology of his actions at or about the time the toaster was left on in the kitchen. In his evidence he stated that he had gone to the kitchen and put soup into the microwave to heat it. He then went back to his desk for some five minutes returning to the kitchen thereafter. He then left to go to the toilet for five minutes and returned to the kitchen. He did not meet anyone before returning to his desk for the final time.

(53) The disciplinary panel considered that the presence of David Gordon, to give evidence and be cross-examined by the claimant's representative, cured any defect that may have arisen by reason of his failure to give a written statement to the investigating panel.

(54) In the respondent's letter of decision of 10 September 2014 Mr Barker stated:-

"... At the hearing it was evidenced in the witness testimony that you were the last person in the kitchen prior to Mr Gordon entering the area and discovering the deliberately set fire of paper in the toaster on 3.2.14. Furthermore, after visiting the place of the incident in Lough House the panel cannot accept your version that someone else must have entered the kitchen after you had left and prior to Mr Gordon entering and set up the fire.

It is only eight steps from the kitchen doorway to the glass panel door which Mr Gordon opened for you after you left the kitchen on the date in question. This in itself would not take more than 5-7 seconds. Mr Gordon had a clear view to the kitchen doorway during this small timeframe and he did not see anyone else come out. In total we feel he would have entered the kitchen 10-14 seconds after you left it. In the opinion of the panel and in particular the professional opinion of the Senior Estates panel member - this would be the required timeframe for the inserted paper to combust in the toaster.

At the hearing you also told the panel that when you were in the kitchen there were, no burning smells and you did not see anyone else. Therefore we are left with no other option but to conclude that you deliberately put paper in the toaster and set the timer to cause a fire. The panel feel that your actions were both calculated and malicious.

The second allegation is proven through your own admissions at the hearing that you had previously been advised how you should be completing your flexi sheets and how you should properly apply for annual leave but chose to ignore these and not adhere to the instructions given to you by your manager. These actions are totally unacceptable ...".

(55) The claimant appealed the decision to dismiss him and the appeal hearing was scheduled for 21 October 2014. The appeal hearing took the form of a re-hearing before a new panel. The appeal panel comprised Myra Weir, chairperson, and Timothy Sheehan. At the appeal Mr Spence was the presenting officer and read out the investigating panel's findings in relation to both charges. He also called the following witnesses; David Gordon, Paul Morgan, Mary Mageean, Brian Grimley and Melissa Hollywood. The claimant was represented by Miss Barbara Wilson. The claimant's representative had the opportunity to put questions to all the witnesses. Then the claimant's representative presented his evidence and when this was completed final submissions were made. The appeal panel did not have any notes or minutes of the disciplinary panel. It merely knew the outcome which was a breach of the LRA Code of Practice.

(56) At the appeal hearing Barbara Wilson, on behalf of the claimant, contended that the charges were not fully investigated. She also stated there were different views and opinions on the type of paper alleged to be in the toaster and the extent of flames, smoke and no physical evidence was collected. She stated that at the suspension meeting of 5 February 2014 the claimant was not given the opportunity to give his side of events. The claimant gave a chronology of his actions at or about the time the toaster was left on in the kitchen. In his evidence he stated that he had gone to the kitchen and put soup into the microwave to heat it. He then went back to his desk for some five minutes returning to the kitchen thereafter. He then left to go to the toilet for five minutes and returned to the kitchen. He did not meet anyone before returning to his desk for the final time. He asserted that there is a smell of burning every day in the kitchen. He further asserted that David Gordon did not visit the eating area or the toilets to see whether there were other people about. At the appeal hearing the claimant asked whether David Gordon could have set the fire. He also stated that entrance to the building could be gained via the doors to the courtyard of the eating area.

(57) The panel members rejected the proposition that they should seek other evidence before arriving at their decision and felt that they had sufficient evidence to arrive at their conclusion. They were satisfied that the charges had been properly investigated.

(58) The appeal panel upheld the decision to dismiss on the ground of arson. It found that the irregularities in the annual leave/flexi leave proven following the claimant's admission to this charge but that they amounted to major misconduct and not gross misconduct and therefore did not play any part in the decision to dismiss the claimant. The appeal panel's finding in relation to the charge of deliberately causing a fire (arson) was;

"Based on the information presented at the Disciplinary Appeal Hearing, you admitted to being in the kitchen preparing your lunch on 3 February 2014 around the time of the incident. Evidence provided by the witness who discovered the fire was that he held the door open for you as you left the corridor at the kitchen area with a bowl of soup. It is the panel's view that it is highly unlikely that you would have been leaving from any other room other than the kitchen as you were carrying a bowl of soup. The witness has also confirmed that you were the only person in the vicinity of the kitchen when burning paper was discovered in the toaster with the timer on and set to three minutes. It is the view of the panel that you deliberately put paper in the toaster and switched it on to cause a fire. This amounts to gross misconduct on your behalf and the panel uphold the original decision to dismiss you."

(59) Since his dismissal the claimant secured employment on a six month contract on 5 January 2015 which was extended to April 2016 on an annual salary of £18,000 gross £15,196.32 net.

(60) In his witness statement which contains responses to specific questions posed by Mr Martins, on behalf of the claimant, David Gordon stated that he met the claimant;-

"At a doorway in the corridor on the Ground Floor of Lough House, between the kitchen and the offices".

(61) In response to a request that he describe how he explained the incident to Melissa Hollywood he stated;-

"I explained I was walking up the corridor towards the kitchen. I saw Mr Hawthorne exit the kitchen, carrying a bowl (of soup/something hot). I opened the door for him and then went into the kitchen where I immediately noticed a distinct burning smell. On approaching the toaster I noticed it was on a 3 minute timer and was still turned on. I saw paper smouldering in it and therefore immediately turned it off at the plug and blew out the smouldering paper before it caught light. I then ensured there was no danger and went to my manager's office as described above."

(62) The disciplinary panel believed on the basis of the evidence put in, both written and oral, that there was an attempt made by the claimant to start a fire through the introduction of a paper tissue or similar material into a toaster in the kitchen in Lough House and turning it on for a period of three minutes with a view to cause combustion deliberately.

The Law

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

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

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

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

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

(6) When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer (Harvey on Industrial Relations and Employment Law D1 paragraph [1535]).

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

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

Later it added:-

"26 ... The judgement as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal."

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

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

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

(9) In A v B Elias J commented at paragraph 7. In relation to a proper suspension;-

"... but it meant that he could not take steps to obtain evidence in his own defence against these allegations."

He further added at paragraph 58:-

"..., that the relevant circumstances do in fact include a consideration of the gravity of the charges and their potential effect upon the employee."

Elias J further stated at paragraphs (60 and 61):-

"Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.

This is particularly the case where, as is frequently the situation and was indeed the position here, the employee himself is suspended and has been denied the opportunity of being able to contact potentially relevant witnesses. The employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in the chosen field, as in this case. In such circumstances any less than a even handed approach to the process of investigation would not be reasonable in all the circumstances."

Elias J issued a further warning in relation to the adequacy of investigations where he stated at paragraph 79;-

"It is obvious that once these opinions have been formed by the various social workers it was going to be very difficult for any employee, however innocent in fact, to demonstrate that innocence. In such cases there is a particular need to ensure that reasonable steps are taken to identify such persons who may be able to give evidence to counter the allegations made against him.

Of course, the touchstone is always reasonableness. The recognition that the standard of reasonableness is going to depend upon the state of the case against an employee is found in the decision of the Employment Appeal Tribunal, Wood J giving the judgement, in the case of Ilea v Gravett [1988] IRLR 497 . In the course of his decision Wood J said at paragraph 15.:

'... at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of enquiry and investigations, including questioning of the employee which may be required is likely to increase.'"

Elias J issued a further warning to tribunals where he said at paragraph 86:-

"... It is no answer for an employer to say that even if the investigation had been reasonable it would have made no difference to the decision. That is to resurrect the heresy that was first brought to light by the decision of the Employment Appeal Tribunal in British Labour Pump v Byrne [1979] IRLR 94 in which was finally laid to rest by the House of Lords in Polkey v AE Dayton Services Ltd [1987] IRLR 503 . If the investigation is not reasonable in all the circumstances, then the dismissal is unfair and the fact that it may have caused no adverse prejudice to the employee goes, at least as the law currently stands, to compensation."

(10) In Roldan Elias LJ stated at page 724, paragraph 13;-

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

Approving of a conclusion of the employment tribunal Elias LJ stated at paragraph 56:-

"In my judgement, the employment tribunal was also entitled to conclude that given in particular the fact that the case turned on the conflict of evidence, the employers ought at least to have tested the evidence of Miss Denton where it was possible to do so. The one objective area where the evidence might have been tested concerned the question whether it was likely that the appellant would have been able to see out of the window or whether the blinds would have been drawn. If there is indeed a strong practice that the window blinds are drawn, as the appellant and Mrs Pemberton both asserted, then this would have cast doubt on this aspect of the complaint's account."

He further observed, at page 729 paragraph 73;-

"The second point raised by this appeal concerns the approach of employers to allegations of misconduct where ... the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems: it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own advantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrong doer the benefit of the doubt without feeling compelled to have to come down in favour of one side or the other."

(11) When determining whether an employer has acted as any hypothetical reasonable employer would do it will be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee's opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation. ( Turner v East Midlands Trains Ltd [2013] ICR CA paragraph 20 ).

(12) In Millar v William Hill Organisation Ltd (UKEAT/0336/12/SM) the EAT stated at paragraph 42:-

"... We acknowledge, of course, that there is limit to the steps which an employer should be expected to take to investigate whether there are facts which might exculpate the employee. How far an employer should go will depend on the circumstances of the case, including the time it will take, the expense involved (if any), and the consequences for the employee if the employee is dismissed ...".

(13) The Court of Appeal in Stuart v London City Airport (UKEAT/0273/12/BA) held that the reasonableness of the investigation can be assessed by reference to the way in which the employee put his/her case during the internal procedure. In particular, if it is debateable whether or not an investigatory step was required, whether or not the employee asked for it to be undertaken is an important consideration (Tolley's Employment Handbook 2015 29 ^th Edition Chapter 53.10 at Page 1290).

(14) Longmore LJ in the English Court of Appeal decision in Bowater v North West London Hospitals NHS Trust [2011] IRLR 331 at paragraph 18 commented:-

"... But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgement always bearing in mind that the test is whether the dismissal is within the range of reasonable options open to a reasonable employer."

He later added at paragraph 19:-

"... It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal."

(15) A further helpful comment is set out on a misconduct dismissal in the English Court of Appeal decision in Fuller v The London Borough of Brent [2001] IRLR 414 at 54 where Morre-Bick LJ stated:-

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

(16) An employer is entitled to take into account both the actual impact of the impugned conduct, and the potential impact of that conduct when determining whether dismissal was a reasonable sanction ( Wyncanton PLC v Atkinson (UKEAT/0040/11/DM) (19 July 2011, unreported) . In that case, two employees failed to renew their HGV licences with the effect that they had been driving the employer's vehicles in breach of Regulations and without valid insurance. The tribunal took the view that as they had not caused an accident, and the employer had not been subject to regulatory sanctions no harm had resulted and their dismissals were unfair. The EAT overturned the tribunal on the grounds that insufficient weight had been given to the very serious potential consequences of the misconduct. (Tolley's Employment Handbook 2015 29 ^th Edition Chapter 53.9 at Page 1286).

(17) Where the tribunal considers that any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award the tribunal shall reduce the amount accordingly (Article 156(2) The Employment Rights (Northern Ireland) Order 1996).

(18) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding (Article 157(6) The Employment Rights (Northern Ireland) Order 1996).

(19) In ascertaining the loss suffered by the employee the tribunal shall apply the same duty to mitigate the loss as applies to damages recoverable under the common law of Northern Ireland.

Application of the Law and the Findings of Facts to the Issues

6. (1) The claimant has accepted culpability in relation to the irregularities in completing the records of his flexi leave and annual leave.

(2) The appeal tribunal described these irregularities as major misconduct and not a factor in the decision to uphold the dismissal of the claimant.

(3) Therefore this decision concentrates on the charge for which the claimant was dismissed ie that he deliberately caused a fire (arson).

(4) The tribunal is satisfied that the respondent has shown the reason for the dismissal ie misconduct and that it is one of the statutory grounds on which an employer may firmly dismiss an employee.

(5) The tribunal then has to address the question whether the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee. This involves a consideration of the investigation, disciplinary process including the appeal and the sanction.

Investigation

(6) The tribunal is not persuaded that the investigatory process was fair that unfairness was both procedural and substantive.

(7) The procedural flaws in the investigation are manifold. The flaws are mentioned throughout the decision and in particular at paragraphs 4(33), (34) and (36).

(8) There were also substantial flaws. The respondent chose to characterise the charge against the claimant as arson its only policy incorporates the criminal definition of arson. However the tribunal has borne in mind that a disciplinary hearing and appeal are not a criminal court of law and so we do not conclude that the charge was misconceived in that the criminal definition requires damage to be done to sustain the charge of arson and there was not any damage done here.

(9) None the less it is a serious charge with potentially profound consequences for the future life of anyone dismissed for that reason. As Elias J stated in A v B , "... serious allegations of criminal misbehaviour, at least where disputed must always be the subject of the most careful investigation." (Paragraph 60) and at paragraph 61, "... the employee found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field ...".

Elias J gave guidance as to the requirements of a fair investigation in circumstances such as the current case when he said at paragraph 60,

"... a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."

(10) One of the investigators, quite rightly, described the investigation as neither full nor thorough. There was not any attempt to focus on evidence that would exculpate the claimant for example a proper interview with David Gordon to probe and test his evidence as to his accuracy or consider whether he was the person who had put on the toaster, or to check with people who worked in the offices along the corridor or who used the seated eating area or the toilets or the kitchen on the day of the incident to see if anyone had seen anything. The suspension of the claimant by the respondent prevented him from seeking any such evidence.

(11) The investigation was severely flawed and unfair. Elias J in A v B suggested that of itself an unfair investigation rendered the dismissal unfair (see paragraph 5(9) above).

The Disciplinary Hearing

(12) By reason of the procedure followed at the disciplinary hearing of the witnesses giving their evidence and being subject to cross examination some of the procedural flaws were cured.

(13) However the substantive flaws of failing to consequentially evaluate the evidence and focus on exculpatory evidence when faced with a serious charge based on circumstantial evidence was not cured. The disciplinary panel committed the same errors of the investigatory panel and even when encouraged to carry out further investigation it refused to do so.

(14) The disciplinary hearing was not fair therefore quite rightly described the investigation as neither full nor thorough. The approach stated at paragraph 60 to be a requirement in circumstances such as the current are that an employer must carry out,

"... a careful and conscientious investigation of the facts is necessary".

Appeal

(15) Likewise the appeal process was unfair in that it failed to correct the substantive flaws despite the permitting of the cross examination of all witnesses. It did not address its mind to consider if there was exculpatory evidence in relation to the claimant. It failed to carry out further investigations and was further trammelled by not knowing the details of the disciplinary hearing save the outcome. The appeal hearing therefore is also unfair.

Sanction

(16) The sanction therefore of dismissing the claimant is untenable.

(17) Accordingly the claimant was unfairly dismissed by the respondent.

Remedy

(18) The tribunal is satisfied that the claimant mitigated his loss.

(19) The tribunal is not satisfied that there was any contributory fault in relation to the arson charge. As the finding of major misconduct in relation to the irregularities in the completion of flexi leave and annual leave did not contribute to the dismissal then that blame where the conduct cannot be regarded as a contribution towards the claimant's dismissal.

(20) The claimant therefore is entitled to an award of compensation as set out below. The mathematics of the calculation were largely agreed by the parties.

Basic Award

10 September 2014 to 16 June 2015

1 x 1.5 x £490 = £735

19 x 1 x 490 = £9,310.00 that makes a total basic award of £10,045.00

Compensatory Award

10 September 2014 to 30 September 2015 (55 weeks)

£464.26 x 55 = £25,534.30

Earnings From

5 January 2015 to 30 September 2015 (38 weeks and two days)

£292.24 x 38.29 = £11,189.87

Total Compensatory Award £14,344.43

Loss of Statutory Rights £ 250.00

TOTAL COMPENSATION £24,639.43

The prescribed period is from 10 September 2014 to 5 January 2015. The prescribed amount is £16,881.65 (that is £24,639.43 - £7,757.78).

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

8. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996, as amended, apply to this decision. Your attention is drawn to the attached Recoupment Notice, which forms part of this decision.

Employment Judge:

Date and place of hearing: 18, 19, 20, 21, 22 and 29 May and 16 June 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 >> Hawthorn v South Eastern Health and Socia... [2015] NIIT 02699_15IT (02 October 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/02699_15IT.html Cite as: [2015] NIIT 02699_15IT, [2015] NIIT 2699_15IT

Industrial Tribunals Northern Ireland Decisions