Pearson v Nu-Track Ltd [2017] NIIT 01800

THE INDUSTRIAL TRIBUNALS

CASE REF: 1800/17

CLAIMANT: Mark Pearson

RESPONDENT: Nu-Track Ltd

DECISION

The unanimous decision of the tribunal is:-

(i) that the claimant was not automatically unfairly dismissed contrary to Article 136 of the Employment Rights (Northern Ireland) Order 1996;

(ii) that the claimant was not subject to unlawful detriment on the ground of trade union activity contrary to Article 73 of the 1996 Order; and

(iii) that the claimant was unfairly dismissed contrary to Article 130 of the 1996 Order.

Compensation of £4,161.16 is therefore awarded to the claimant, calculated as set out in this decision, including a 50% reduction on the ground of contributory conduct.

The attention of the parties is drawn to the Recoupment Order attached to this decision.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms D Adams

Mr J Barbour

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

The respondent was represented by Mr N Philips, Barrister-at-Law, instructed by Carson McDowell LLP, Solicitors.

Background

1. The respondent company is an engineering firm.

2. The claimant was employed by the respondent as a coach builder. He was also an elected Unite official and the Unite health & safety representative at the relevant times. The main, or more senior, Unite shop steward was Mr Colin Smyth.

3. On 29 August 2016, the claimant received a pay-slip which belonged to another employee, Mr Ian Clarke. Mr Clarke had, at the relevant time, received a higher hourly rate than that received by the coach builders. He had been employed as an automotive electrician.

4. Without the permission, or the knowledge, of Mr Clarke, the claimant immediately passed the pay-slip to Mr Smyth, the senior Unite shop steward.

5. Mr Smyth retained the pay-slip for a brief period and then returned it to the claimant, and instructed him to forward the pay-slip to the Unite office in Ballymena. The claimant did so by placing the pay-slip in an envelope in the post box at the Unite office because the office was, at the relevant times, closed.

6. Mr Clarke, whose pay-slip had been forwarded to Unite, became aware that his pay-slip had been openly discussed on the shop floor and that it had been in the possession of the claimant and Mr Smyth. As a result, he lodged a grievance. The pay-slip was eventually returned to Mr Clarke by Mr Smyth on 5 September 2016, one week after it had been received by the claimant.

7. The claimant and Mr Smyth argued that they had been acting as trade union representatives in the manner in which they had dealt with the pay-slip.

8. Following disciplinary proceedings, the claimant and Mr Smyth were both summarily dismissed for both gross misconduct and major conduct.

9. The claimant and Mr Smyth separately lodged tribunal claims alleging that their dismissals had been unfair for the purposes of Article 130 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order'); that they had suffered an unlawful detriment on the ground of trade union activity for the purposes of Article 73 of the 1996 Order, and that they had been automatically unfairly dismissed for the purposes of Article 136 of the 1996 Order.

10. The respondent asserted that both the claimant and Mr Smyth had been fairly dismissed for gross misconduct; that neither had suffered an unlawful detriment, and that the dismissals had not been influenced by trade union activity.

11. Mr Smyth withdrew his claim on 22 November 2017, less than one week before the hearing was due to commence on 28 November 2017. The claimant proceeded with his claim to hearing.

Procedure

12. The claim had been case-managed and the witness statement procedure had been directed by the tribunal. Each witness, including the claimant, adopted their previously exchanged witness statement as their entire evidence-in-chief, and then moved immediately to cross-examination and brief re-examination.

13. On behalf of the respondent, four witnesses gave evidence:-

(i) Alistair Hamill, Operations Director;

(ii) Robert Shiels, Business Improvement Manager, who had heard the disciplinary hearings and who had decided to dismiss both the claimant and Mr Smyth;

(iii) Steven Francey, Managing Director, who heard the internal appeal hearings for both the claimant and Mr Smyth and who had rejected both their appeals; and

(iv) Sharon Wilkinson, who had been the Health & Safety Officer for the respondent up to March 2016 and who had dealt with the claimant during that period in his capacity as health & safety representative. Since that date, Ms Wilkinson has been employed by an associated company.

14. The claimant gave evidence on his own behalf and called no other witnesses.

15. The tribunal sat on 28 November 2017 and 29 November 2017. The respondent's evidence was completed on the first day. The claimant's evidence was completed by 12.00 pm on the second day. Both parties made final submissions orally that afternoon.

16. The tribunal panel met on 4 December 2017 to reach a decision. This document is that decision.

Relevant law

Unfair dismissal

17. The statutory test to be applied by a tribunal, when considering the fairness of a misconduct dismissal, appears simple. However it has provoked a lengthy series of appellate decisions.

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

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

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

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

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

(b) relates to the conduct of the employee,

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

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

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

19. The Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

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

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

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

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

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

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

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

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

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

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

He continued at Paragraph 19:-

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

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

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

At Paragraph 38 of the decision, he continued:-

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

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

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

"In A v B the EAT said this:- 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 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 enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. "

23. The Court of Appeal in Northern Ireland further examined the approach that a tribunal should adopt in claims of unfair dismissal in the case of Connolly v Western Health & Social Care Trust [2017] NICA 61.

In that case, a nurse, who was on duty in a hospital ward and who was experiencing the symptoms of an asthma attack, used a Ventolin inhaler from the locked ward stock. She had intended to replace it with another inhaler which would have been supplied to her on her own prescription. She had not sought prior permission to use the hospital's inhaler; she had not approached any doctor in the hospital for assistance; she had not attended the Accident & Emergency Department for assistance. She did not disclose the use of the inhaler until her next day on duty two days later. It was not in dispute that there had been misconduct on the part of the claimant in using a prescription only medicine which was part of hospital stock. The issue in all of this was whether the misconduct had been sufficiently serious to ground summary dismissal for gross misconduct.

24. The WHSCT had been concerned that the claimant had intended to replace the inhaler from her own supply. That would have broken the chain of supply within the hospital and in the employer's view would have presented a serious risk to the health of patients. The employer was also concerned that the claimant had sought, in response to the disciplinary proceedings, to stress that Ventolin had not been a controlled drug (although it had been a prescription only drug). The employer felt the claimant still believed that her conduct was permissible in certain circumstances and that therefore the behaviour could recur. The claimant was summarily dismissed for gross misconduct.

25. This case was the subject of two separate appeals to the Court of Appeal. However, the later appeal is the one relevant to the present case. It was a split decision. The minority decision, reached by Gillen LJ, found that the tribunal decision had been correct, in that it had held that there had been a fair dismissal for gross misconduct. The hospital rules had made it clear that ' misappropriation' of drugs was a potential offence. The claimant had not notified any other member of staff of her use of the inhaler before using it or for the rest of that shift. She had attended work for her next shift some two days later and had only then informed her manager that she had used the Ventolin inhaler from ward stock.

26. In essence, Gillen LJ determined that the decision to summarily dismiss the claimant in all the circumstances of the case had been a decision which a reasonable employer could reasonably have reached, even if may not have been the decision that the tribunal or the court would have reached, had it been determining the issue at first instance.

27. After citing the usual authorities, Gillen LJ approved the following statement in the tribunal's findings:-

"It may not re-hear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal : that is, whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt. The question is not whether the tribunal will have reached the same decision from the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case."

28. Gillen LJ then noted that the tribunal had determined that the employer had been concerned by the use of the prescription only inhaler from the ward stock which had been kept under lock and key, the claimant's intention to replace that inhaler with an inhaler from her own supply and that she knew the use of such medication was wrong. The tribunal had determined that the employer had held a genuine belief in gross misconduct which had been reached on reasonable grounds following a reasonable investigation and that it was not for the tribunal to substitute its own opinion or penalty for that of the employer in the circumstances of this case. Gillen LJ determined that:-

"49. I consider that there is no basis upon which this court could consider that this conclusion was plainly wrong or that it could not have been reached by any other reasonable tribunal. Taking a prescription drug from under lock and key for the appellant's own use is clearly an extremely serious matter which no hospital can or should tolerate. Not only was the appellant well aware that this was prohibited behaviour but it could easily have been avoided by seeking assistance from A and E or the duty doctor.

50. It was not unreasonable to conclude that this was aggravated by her failure to report the matter until two days later. Moreover it was perfectly reasonable for the Panel, made up of employees of the Trust well versed in Trust procedures and policies, to take the view that intent to personally replace it infringed the pharmacy supply chain. Frankly it scarcely requires an expert to inform the court that decisions to replace prescribed medications in principle should not be taken at this level irrespective of how simple an exercise in replacement in individual instances may appear to be."

29. Gillen LJ concluded:-

"57. Whilst this may not necessarily have been the conclusion that this court would have reached had it been hearing the matter at first instance, I find no basis for substituting our view for that of the Panel and the Industrial Tribunal hearing this matter. I therefore dismiss this ground of appeal."

30. The majority of the Court of Appeal in Connolly, Deeny LJ and Weir LJ, reached a different conclusion. Firstly, they concluded that the decision of the respondent to dismiss the claimant, in all the circumstances of the case, was not a decision which a reasonable employer could reasonably have reached. Secondly, it determined that the decision of the industrial tribunal was ' plainly wrong'. That second decision is based on the facts of the Connolly decision and on the view taken by the majority of the Court of Appeal in relation to the wording of the tribunal decision in that case. The first decision, and the approach taken by the majority to the objective standard of reasonableness, is of primary importance to the present decision.

31. Deeny LJ stated that:-

"Reaching a conclusion as to whether the dismissal is fair or unfair 'in accordance with equity and the substantial merits of the case' as required by Article 130(4)(b) would appear to involve a mixed question of law and fact."

32. Deeny LJ then cited the well-known paragraph in Iceland Frozen Foods Ltd v Jones (above) which sets out the ' reasonable responses' test. He went on to quote further from that decision to include the following:-

" Although the statement of principle in Vickers Ltd v Smith [1977] IRLR 11 is entirely accurate in law, for the reasons given in N C Watling & Company Ltd v Richardson [1978] ICR 1049, we think industrial tribunals would do well not to direct themselves by reference to it. The statement in Vickers Ltd v Smith is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. This is how the industrial tribunal in the present case seems to have read Vickers v Smith. That is not the law. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle in N C Watling & Company Ltd v Richardson [1978] ICR 1049 or Rolls Royce Ltd v Walpole [1980] IRLR 343. "

33. Deeny LJ then pointed out that gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee:-

"So the conduct must be a deliberate and wilful contradiction of the contractual terms."

34. Deeny LJ stated that:-

"The facts as found are that she [the claimant] took five puffs of this inhaler when undergoing an asthmatic attack, without permission. The tribunal accepted the Appeal Panel's view that this was aggravated by her failure to report the matter until two days later.

It seems to me that, even taking into account the delay, for which an explanation was given and was not rejected as a finding of fact, that can not constitute 'deliberate and wilful conduct' justifying summary dismissal. Her terms of employment do not seem to have expressly prohibited such a use. The Code of Conduct is ambiguous at best on the topic. If she had asked the Ward Sister for permission before she used the inhaler and the Sister had refused her permission and she had nevertheless gone ahead and had used it one might have had the sort of act of disobedience contemplated by the Court of Appeal in Laws v London Chronicle Limited. That would have been a deliberate flouting of essential contractual conditions, ie following the instructions of her clinical superiors. But that is not what happened here. Furthermore, I agree with the statements in Harvey ... that dismissals for a single first offence must require the offence to be particularly serious. Given the whole list of matters which the employer included under the hearing of Gross Misconduct it is impossible, in my view, to regard the nurse's actions as 'particularly serious'."

35. Deeny LJ stated:-

"For this court to approbate the tribunal's decision upholding as within a reasonable range of responses the summary dismissal of an employee from her chosen profession on these facts without any prior warning as a 'repudiation of the fundamental terms of the contract' would be to turn language on its head. Employment law is a particular branch of the law of contract. With statutory interventions it has, of course, developed a character of its own. But any dismissed employee opting to go into a court of law and claim damages for breach of contract at common law against an employer who had summarily dismissed them for using a Ventolin inhaler while suffering from an asthmatic attack and delaying two days in reporting that, particularly when it was their 'first offence', could be tolerably confident of success before a judge, in my view."

36. Deeny LJ held further that:-

"The interpretation of what, in this jurisdiction, is Article 130(4)(a) of the 1996 Order has been fixed by a series of appellate courts over the years, ie that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would have made. That test, expressed in various ways, is too long established to be altered by this court, and in any event has persuasive arguments in favour of it. But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie that that decision 'shall be determined in accordance with equity and the substantial merits of the case'. ... ."

37. The statutory test of unfairness in Article 130 of the 1996 Order is in simple terms, and should be straightforward. It is difficult to see why it has generated such an extended discussion in case law over the last 40 years. The words of Article 130 comprise the only statutory test of unfairness. The formulation of the ' band of reasonable responses' test, variously worded in different decisions, cannot be a substitution for the proper application of the statutory test. It may best be regarded as a double-check to be applied to ensure that, in applying the statutory test, the tribunal has avoided substituting its own views, on what it would have done in the relevant circumstances, for the decision of the employer. In other words it is, as the Court of Appeal (GB) stated in Fuller (above), a ' reassurance of objectivity'.

It is important to remember that the ' reasonable responses' test, although long-established as pointed out by the Court of Appeal in Connolly (above), appears nowhere in the statute. This is a statutory tribunal whose function is to apply the statute. Non-statutory wording or non-statutory paraphrasing of the statutory test can only be of assistance where it is remembered that it cannot substitute for the statutory test which sets out the remit and the function of the tribunal. In Iceland (above), it was stressed that the starting point should be the words of the legislation. In Connolly (above) the Court of Appeal (Northern Ireland) emphasised the importance of applying the statutory test as a whole.

38. There is no difference between the formulation of the legal principles expressed in the majority judgment and in the minority judgment in the case of Connolly. The detailed formulation of those principles set out by Gillen LJ at Paragraph 28(i) - (xvi) of the decision covers, in full, the procedure which should be adopted by an industrial tribunal in assessing the fairness or unfairness of a misconduct dismissal. It is not disputed or challenged in any way in the majority judgement.

Automatically unfair dismissal/trade union activities

39. Article 136 of the 1996 Order provides:-

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (of, if more than one, the principal reason) is that the employee -

...

(b) had taken part or had proposed to take part in the activities of an independent trade union at an appropriate time -

...

(2) in Paragraph (1) 'an appropriate time' means -

(a) a time outside the employee's working hours, or

(b) time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union ...

and for this purpose 'working hours', in relation to an employee means any time, when in accordance with his contract of employment he is required to be at work."

40. Dismissal for conduct which on its own would justify dismissal may not become automatically unfair simply because it took place in the course of union activities. Union activities should not be used as a cloak or excuse for activities which, on their own, could amount to misconduct justifying dismissal.

41. The legal principles relevant to the application of the Great Britain equivalent of Article 136 were set out by the EAT in Azam v Ofqual [UKEAT/0407/14]:-

" The Legal Principles

25. By section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 the dismissal of an employee shall be regarded as unfair if the reason or principal reason for the dismissal was that the employee had (relevantly) taken part or proposed to take part in the activities of an independent trade union at an appropriate time. "Appropriate time" is defined by section 152(2). What is the reason or principal reason for a dismissal is for the ET as a question of fact ( Kuzel v Roche Products Ltd [2008] ICR 799). The burden of proof will be on the Respondent ( Maund v Penwith District Council [1984] ICR 143). In a section 152 case, it is unnecessary for an employee to show that an employer's action was motivated by malice or anti-union hostility ( Dunson v GPT Ltd [1995] IRLR 403).

26. The question for this court was whether the ET had reached a permissible view as to the reason for dismissal and in its determination whether that was or was not a prohibited reason ( Burgess v Bass Taverns [1995] IRLR 596 CA). If the ET has reached such a permissible view it is not for the EAT to interfere.

27. Is it the case that any activity claimed to be a trade union activity is covered by the protection? The answer to that question is plainly no; see the Judgment of Pill LJ in the case of Burgess v Bass Taverns, who noted:

" 8. Reference was made to the decision of the Employment Appeal Tribunal (Phillips J presiding) in Lyon v St James Press Ltd [1976] IRLR 215. Miss Slade rightly says that the case was decided under earlier legislation in which there was no equivalent of s.58(2)(b). 'Appropriate time' was not defined in the Employment Protection Act 1975.

9. Phillips J stated at paragraph 16:

"The special protection afforded by para. 6(4)"

of the 1975 Act

"... to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate."

Phillips J added at paragraph 20 in relation to acts claimed to come within the protection:

"We do not say that every such act is protected. For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair." "

28. Merely going "over the top" will not, however, suffice. The approach to the facts in the case of Burgess is instructive; see, further, the Judgment of Pill LJ at paragraphs 12 to 14:

"12. In the findings of the industrial tribunal as to what the respondent said, I find nothing beyond the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union or, for that matter, some other organisation or cause. Neither dishonesty nor bad faith are suggested. While harmonious relations between a company and a union are highly desirable, a union recruiting meeting cannot realistically be limited to that object. A consent which at the same time prevents the recruiter from saying anything adverse about the employer is no real consent. Given that there was consent to use the meeting as a forum for recruitment, it cannot be regarded as an 'abuse of privilege' to make remarks to employees which are critical of the company. An industrial tribunal may be surprised at the situation which developed, but it was the employers who, at the start of their induction course, put the respondent in the position of being both trainer manager and recruiter. Having put him in that position, they cannot reasonably expect his activities in the latter role to be limited by the fact that he also was performing the role of trainer manager.

13. It appears to me that the industrial tribunal did base their decision on an implied term of the kind now contended for, albeit not in the same way. The company's case is not, in my judgment, improved by the present reliance upon an implied term that the recruiter should say nothing to criticise or disparage the company or upon the presence of the word 'consent' and the word 'permissible' in s.58(2)(b). One has only to consider the likely reaction if the company had attempted to make the term expressed. It is difficult to envisage any trade union official accepting a limitation upon his activities at a recruiting meeting that he should say nothing critical about his employer. Indeed, it is difficult to envisage a sensible employer attempting to require such a term. It is wholly unrealistic, in my judgment, to believe that such a term can be implied in the present context. The respondent's admission that he had 'gone over the top' does not, in my judgment, provide a basis for a finding that during his speech he was not taking part in trade union activities. That is an expression sometimes used colloquially in [situations] when that moderation and balance normally shown in social intercourse is perceived to have been exceeded. In the circumstances of the present case, however, it was not an admission that could form the basis for a conclusion that in law the contents of the speech were outside the scope of trade union activities. The Employment Appeal Tribunal correctly concluded that the industrial tribunal had fallen into error.

14. I would base the decision on this appeal upon the grounds already expressed rather than upon the Employment Appeal Tribunal's reliance on a verbal inconsistency between the industrial tribunal's finding that the respondent was 'taking part in the activities of an independent trade union at an appropriate time' and their subsequent finding that he was not dismissed for trade union reasons. I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand they may be, come within the term 'trade union activities' in s.58 of the Act."

29. If there were any potential conflict between the approach adopted in the Lyon v St James case and the case of Burgess, then the approach laid down in Burgess is to be preferred; see per Slade J in Mihaj v Sodexho Ltd [2014] UKEAT/0139/14:

'17. The Judgment of the Court of Appeal in Bass Taverns v Burgess [1995] IRLR 596 makes it clear that the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is such as to be dishonest, in bad faith, or carried out for some other organisation or cause so as to remove them from the scope of what can properly be called trade union activities.

...

20. However, the approach in Bass Taverns , in the Court of Appeal rather than that in Lyon v St James Press , is to be followed if and insofar as there is any relevant inconsistency between the two. In our judgement, the Employment Judge failed to apply the approach set out in Bass Taverns in that he determined that an Employment Tribunal at a full Liability Hearing was not likely to hold that the dismissal of the claimant fell within the statutory protection because of the way in which trade union activities were carried out. The issue for the Employment Judge to decide was whether an Employment Tribunal, on a full Liability Hearing, was likely to find that the Claimant was dismissed for carrying out trade union activities. The way in which those activities was carried out was not relevant unless it was such as described in Bass or Lyon , namely acting in bad faith, dishonestly or for some extraneous cause or in any other way such as to take those actions outside the proper scope of trade union activities. '

30. In establishing which side of the line an activity falls, it may be instructive to have regard to the ACAS Code of Practice No 3 - Time Off for Trade Union Duties and Activities 2010. In particular, (relevant to the present case), paragraph 47 provides as follows:

'When using facilities provided by the employer for the purposes of communication with their members or their trade union, union representatives must comply with agreed procedures ... in respect of access to and use of company information. The agreed procedures will be either those agreed between the union and the employer as part of an agreement on time off ... or ... general rules applied to all employees in the organisation. In particular, union representatives must respect and maintain the confidentiality of information they are given access to where, the disclosure would seriously harm the functioning of, or would be prejudicial to, the employer's business interests. ... Union representatives should understand that unauthorised publication risks damaging the employer's business, straining relations with the representative body concerned ...'."

Trade union Detriment

42. In the present case, the Article 73 claim related to the disciplinary process leading up to the dismissal of the claimant. It was inextricably part of the Article 136 claim. There was no separate argument, in the opening or closing submissions of the claimant, in relation to Article 73.

Contributory conduct

43. If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, see Nelson v BBC (No 2) [1979] IRLR 346, compensation in respect of both the basic and compensatory awards may be reduced by an appropriate percentage. In determining whether the conduct is blameworthy, the test is objective. It does not matter whether the employee knew the conduct was wrong - see Ladbroke Racing Ltd v Mason [1978] ICR 149.

If the employee is wholly to blame for the dismissal compensation may be reduced by up to 100% - see Hollier v Plysu Ltd [1983] IRLR 260.

Relevant findings of fact

44. The claimant had been employed as a coach builder by the respondent company for approximately eight years.

45. The claimant had also been an elected trade union official (Unite) for approximately two years.

46. Another coachbuilder, Mr Colin Smyth, had been elected as a shop steward for the same union for approximately eight years; albeit with a one year break during that period.

47. Mr Smyth was the more senior and the more experienced trade union official. The claimant had been the less experienced trade union official and was subordinate to Mr Smyth in his trade union role.

The claimant and Mr Smyth had frequently worked jointly and had frequently jointly signed correspondence, including grievances, with the respondent company.

48. The claimant's main trade union role has been as the Unite health & safety representative. The claimant took part in a workplace health & safety Committee with management representatives. The claimant had been active in that role and in trade union activities generally, including pay negotiation.

49. On 29 August 2016, the claimant was approached by a non-union employee, Mr John McMahon. Mr McMahon had, in the past, represented non-union employees in pay negotiations.

50. Mr McMahon gave the claimant a pay-slip which related to another employee, Mr Ian Clarke. It is not clear, and it was never determined, how Mr McMahon came into possession of that pay-slip and whether Mr McMahon had handed it to the claimant or whether he had simply left it on the claimant's toolbox. However, neither of those matters are matters which appear to be significant to the tribunal or which should have been significant to the respondent.

51. It is not, and was not at the relevant times, in dispute that the claimant read the pay-slip; that he knew that it was Mr Clarke's pay-slip; that he had realised that Mr Clarke's hourly rate of £11.23 was higher than the hourly rate of coachbuilders at £9.93, and that Mr McMahon had asked him, in effect, ' what are you (or the union) going to do about it?'.

52. Pay negotiations were pending at that time. It seems clear, and it was at the relevant times accepted by the respondent, that the claimant had been given Mr Clarke's pay-slip by Mr McMahon because the claimant had been at that time a trade union official.

53. The claimant had believed (wrongly) that all tradesmen were on the same hourly rate. Mr Clarke had been engaged as an automotive electrician with some supervisory responsibilities; hence the higher hourly rate.

54. The claimant did not immediately return the pay-slip to Mr Clarke although at that point he knew that it was Mr Clarke's pay-slip and knew that he had no authority or permission from either Mr Clarke or from the respondent company to retain that pay-slip or to further disseminate it.

55. The claimant took the pay-slip to Mr Smyth, the more senior trade union official. In the claimant's terms he ' escalated' the matter to the more senior trade union official. Both Mr Smyth and the claimant took the view that the pay-slip was a trade union matter because it was related to a pay issue.

56. Mr Smyth took the pay-slip from the claimant and for a brief period considered what to do. He then returned it to the claimant and informed the claimant to forward the pay-slip to the Unite office in Ballymena. The claimant agreed with that instruction. He did not demur in any way. Neither Mr Smyth or the claimant attempted to note the only relevant detail; the hourly rate, and then to return the pay-slip to Mr Clarke.

57. The Unite office had been closed at the relevant time. The claimant left the pay-slip in an envelope in the secure post-box of that office.

58. Mr Smyth went to see Mr Alistair Hamill, the Operations Manager, on the same morning. Mr Hamill was the manager responsible for the general running of the factory. It is not in dispute that Mr Smyth informed Mr Hamill that he knew Mr Clarke was being paid at a higher hourly rate and that he had stated that he had seen Mr Clarke's pay-slip. The uncontested evidence of Mr Hamill, which the tribunal accepts, was that Mr Smyth did not disclose to Mr Hamill that he had the pay-slip in his possession or in his control. The pay-slip had not yet been put in the Unite post box. Mr Hamill informed Mr Smyth that he would look into the matter and get back to him.

59. On the next day, 30 August 2016, Mr Hamill spoke to Mr Smyth and informed him that Mr Clarke was being paid on a different scale to that of coachbuilders. He had been employed as an automotive electrician with some supervisory duties.

60. Later on the same day, 30 August 2016, Mr Hamill was informed by another manager that Mr Clarke's pay-slip had been sent off site to the Unite offices in Ballymena. It is not in dispute that Mr Hamill then made it clear to Mr Smyth that the pay-slip was the property of Mr Clarke and that it was also confidential. Mr Hamill informed Mr Smyth that he had to return the pay-slip to Mr Clarke immediately.

61. Two days later, on 1 September 2016, Mr Hamill again informed Mr Smyth that the pay-slip needed to be returned to Mr Clarke urgently.

62. Having heard the unrebutted evidence of Mr Hamill on this point, and in the absence of any evidence from Mr Smyth, the tribunal concludes that Mr Hamill's account of the meetings between him and Mr Smyth on 29 August 2016, 30 August 2016 and 1 September 2016 was accurate.

Mr Hamill accepted in cross-examination that he had given no instruction to return Mr Clarke's pay-slip directly to the claimant, as opposed to directly to Mr Smyth, and that he had given no direct instruction to Mr Smyth to tell the claimant to do so. He had relied solely on the expectation that Mr Smyth and the claimant would have worked together in this matter. In cross-examination, the claimant accepted that Mr Smyth had told the claimant at the time of Mr Hamill's instruction to Mr Smyth to return the pay-slip to Mr Clarke. The tribunal concludes that this could only have occurred on 30 August 2016 or very shortly thereafter.

63. At some point after the initial meeting on 29 August 2016 and before 31 August 2016, Mr Clarke approached the claimant directly and asked for his pay-slip. The claimant gave evidence that he told Mr Clarke that he had not, at that stage, got his pay-slip in his possession and that it ' was in a safe place'. Mr Clarke did not give evidence and therefore the only evidence of this conversation was that provided by the claimant.

64. On the basis of the claimant's evidence-in-chief and cross-examination, the tribunal concludes that the claimant, in the course of this meeting, did not tell Mr Clarke that he had forwarded the pay-slip to the Unite office, without permission or authority. He did not reveal to Mr Clarke that the pay-slip had been removed from the premises and sent off site. He did not explain what had happened to the pay-slip and he did not offer to return the pay-slip to Mr Clarke. Effectively, he ' blanked' Mr Clarke with a meaningless assurance that the pay-slip had been in ' a safe place'. At this stage the claimant would, on the balance of probabilities, have known that Mr Hamill had instructed Mr Smyth to return the pay-slip urgently to Mr Clarke.

65. Mr Clarke also approached Mr Smyth on 30 August 2016 to ask for the return of his pay-slip. Again neither Mr Clarke or Mr Smyth gave evidence in this matter. The claimant did not seek to argue that this meeting had not taken place. On the basis of the records of the investigation into a grievance later raised by Mr Clarke, the tribunal concludes that this meeting had taken place and that Mr Smyth had similarly ' blanked' Mr Clarke and that he had not returned or offered to return the pay-slip at that point. He had indicated to Mr Clarke that he ' was not getting it back yet'. Mr Smyth did not disclose the whereabouts of the pay-slip to Mr Clarke.

66. At this point there followed a complex and detailed procedure of a grievance, a grievance investigation, a grievance conclusion, a disciplinary investigation, a disciplinary hearing, and a disciplinary appeal interspersed with collective grievances and collective grievances about collective grievances.

67. The first stage in this saga was a grievance lodged by Mr Clarke on 31 August 2016 in which he complained about his pay-slip being ' in circulation on the shop floor' and complained that he still had not received what was his ' personal property'.

68. On 5 September 2016, Mr Simon McCartney, Production Manager, interviewed Mr Clarke about that grievance. Mr Clarke indicated that he had been told in the course of his daily work that his pay-slip was in circulation and that he had heard that it had got into the hands of ' union members'. He stated that he had asked Mr Smyth, as the shop steward, whether he had the pay-slip. Mr Smyth had stated that it had been handed to him on 29 August 2016 but that he had stated that Mr Clarke was not getting it back yet. He had stated that it was in safe hands but had not explained anything further. Mr Clarke stated that he had also spoken to the claimant. He stated that the claimant had told him that Mr Smyth had the pay-slip. Mr Clarke stated that he had received the pay-slip back from Mr Smyth on the day of the interview, 5 September 2016. It had been handed to him by Mr Smyth without an envelope. Mr Clarke complained that the trade union should have handed back his pay-slip immediately on receipt and that the pay-slip had contained personal details, including his national insurance number and that this had raised the potential for fraud.

69. On 15 September 2016, Mr McCartney interviewed seven individuals who had either been involved in the processing of pay-slips or had been mentioned by Mr Clarke in his account of the grievance. No convincing explanation was produced as to how Mr Clarke's pay-slip came into general circulation.

70. On 15 September 2016, Mr McCartney interviewed Mr Smyth and separately interviewed the claimant.

71. Neither Mr Smyth nor Mr McCartney gave evidence to this tribunal. However the interview records of that investigation meeting between Mr McCartney and Mr Smyth were not challenged and are accepted by the tribunal as accurate. Mr Smyth accepted, in the course of that interview, that Mr Clarke had asked him for his pay-slip on 30 August 2016 and that he had told Mr Clarke that he did not have the pay-slip at that time. He had not disclosed to Mr Clarke that it had been sent off-site to the Unite office.

72. Mr Smyth stated that ' I didn't tell Mark [the claimant] to anything with it'. He stated that the claimant had not told him who had given him this pay-slip.

73. In the course of his meeting, on 15 September 2016, with Mr McCartney, the claimant accepts that he told Mr McCartney that Mr Clarke had asked for the pay-slip and that he had told Mr Clarke that he did not have it but that it was in a safe place. Importantly, the claimant had refused, at this stage, to identify the person who had originally given him this pay-slip. He stated that he had taken the pay-slip to Mr Smyth and that he had been carrying out ' my duty as a union representative'. He stated that he had gone to ' the senior shop steward for advice' and that Mr Smyth had ' looked at it and said post it to Unite, Ballymena Branch'. He stated that thereafter he had left the matter with Mr Smyth. From that point, it had been between Mr Smyth and the full-time union official in the Ballymena Branch.

74. Following the determination of Mr Clarke's grievance, the respondent invited both Mr Smyth and the claimant, separately, to disciplinary meetings. Both invitations contained the following:-

"We are obliged to inform you that your actions, if substantiated, may potentially constitute one or more of the following rules or offences:

- Major misconduct (normally warranting a final written warning if substantiated).

- Unsatisfactory attitude to work, customers or other employees.

- Gross misconduct (normally warranting summary dismissal, if substantiated).

- Taking part in activities which result in adverse publicity to ourselves or which cause us to lose faith in your integrity.

- Theft or unauthorised possession of money or property, whether belonging to us, another employee, or third party.

- Any breach of confidentiality."

Both the claimant and Mr Smyth were advised of their right to be accompanied by a fellow employee or an accredited trade union representative.

75. On 27 September 2016, Mr Smyth and the claimant raised the first collective grievance which argued that the decision to invoke the grievance procedure had been motivated by Mr Smyth's and the claimant's trade union activities. Given the nature of that collective grievance, the tribunal concludes that it would not have been reasonable or even possible for the respondent to have pursued the disciplinary hearing until after the conclusion of that collective grievance. In cross-examination, the claimant accepted that this was indeed the case. The first collective grievance was followed in due course by another collective grievance about the first collective grievance which again made it even more difficult for the disciplinary hearing to proceed.

76. The claimant sought to argue, initially, that his ultimate dismissal had been unfair because of delay. After cross-examination of the claimant and after the tribunal was led through the copious documentation in relation to the collective grievances, the claimant and the claimant's counsel did not wish to proceed further with this particular argument. In any event, the tribunal concludes that there had been no unreasonable delay in the disciplinary procedure, other than the delay caused directly by the actions of the claimant and Mr Smyth in pursuing collective grievances in relation to the decision to invoke the disciplinary procedure.

The disciplinary interviews of both Mr Smyth and, separately, the claimant were re-arranged ultimately for 12 January 2017. Those disciplinary hearings were chaired by Mr Shiels and the claimant and Mr Smyth were represented by Mr George Brash of Unite.

77. The claimant's disciplinary hearing commenced first at 10.30 am. The claimant still refused to name the employee who had given him the pay-slip on 29 August 2016. He stated that he had gone straight to Mr Smyth when he had received the pay-slip and that Mr Smyth had advised him to post it to the Unite office. He stated he had done so by placing it in the Unite secure post box. He accepted that Mr Clarke had approached him to ask for his pay-slip and that he had told Mr Clarke that the pay-slip was ' in a safe place'. He accepted that he had not explained anything further to Mr Clarke and that he had not told him that the pay-slip had been sent off-site to the Unite office. He stated clearly that he had agreed with Mr Smyth's decision to send the pay-slip to the Unite office. He stated that he had not been involved in returning the pay-slip to Mr Clarke.

The meeting closed at 11.40 am after one hour and ten minutes.

78. The disciplinary hearing with Mr Smyth started immediately thereafter. Mr Smyth accepted that the claimant had come to him with the pay-slip on 29 August 2016. He accepted that he had told the claimant to post the pay-slip that morning and that he had been unable to get in contact with the full-time trade union official in that office. He stated that the claimant had initially given him the pay-slip but that he gave it back to the claimant when he had made up his mind what to do. He accepted that Mr Clarke had approached him to ask for the pay-slip and that he had told Mr Clarke that he would get the pay-slip back ' as soon as he was finished with it'. Mr Clarke had been quite annoyed.

79. The outcome of the disciplinary hearings was given to the claimant and, separately, to Mr Smyth in two separate meetings on 16 January 2017.

80. The meeting with the claimant commenced first at 8.40 am. The claimant was advised that his conduct had been deemed to constitute both major misconduct and gross misconduct and that he was being dismissed summarily. He was advised of the right of appeal.

81. The meeting with Mr Smyth took place shortly thereafter at 8.50 am and followed a similar pattern. Mr Smyth was similarly advised that his conduct was deemed to constitute major conduct and gross misconduct and that he was being summarily dismissed. He was advised of the right of appeal.

82. On 18 January 2017 the outcome of the disciplinary hearings was confirmed in writing, separately to Mr Smyth and to the claimant. The letter to Mr Smyth, signed by Mr Shiels, recounted the disciplinary hearing and the details of the grievance investigation in relation to Mr Clarke's grievance. Mr Shiels stated specifically:-

"I accept that the pay-slip was brought to your attention as you are a trade union representative. As explained at the hearing, the Company is not penalising you for receiving the pay-slip. The concern and the reason for the disciplinary hearing is how you handled/acted on the information passed to your by the third party. We do not believe that sending confidential information belonging to another employee off-site to a third party is part of your duties."

Mr Shiels stated in conclusion:-

"After considering all the information available to me, I found it entirely unacceptable that you would request an employee's personal and confidential information to be sent off site to a third party without speaking with management and gaining consent. In addition, you failed to inform the employee of the whereabouts of his pay-slip before, during or even after he approached you to ask if you had his pay-slip. At no point did you attempt to return the pay-slip to the employee or the Company before 5 ^th of September 2016.

It was my conclusion that the trust, that is implied in all employment relationships, has been breached by you due to the manner in which you have acted in relation to handling the employee's pay-slip.

As such the decision was taken and your actions were deemed to constitute unsatisfactory attitude to work, customers or other employees which constitutes major misconduct and taking part in activities which result in adverse publicity to ourselves and which cause us to lose faith in your integrity and a breach of confidentiality both of which constitute gross misconduct.

In addition, such actions are regarded as a breach of mutual trust and confidence which is sufficient to repudiate a contract of employment."

83. The letter continued to advise Mr Smyth that he had been summarily dismissed as of 16 January 2017. He was advised of his right of appeal.

84. In the letter to the claimant, again signed by Mr Shiels, Mr Shiels outlined again the disciplinary hearing. The letter stated:-

"After considering all the information available to me, I find it entirely unacceptable that you would send an employee's personal confidential information off-site to a third party without speaking with management or gaining consent. In addition, you failed to inform the employee of the whereabouts of his pay-slip before, during or after he approached you to ask if you had his pay-slip. At no point did you attempt to return the pay-slip to the employee or the Company before 5 ^th of September 2016. It was my conclusion that the trust that is implied in all employment relationships, has been breached by you due to the manner in which you have acted in relation to handling the employee's pay-slip.

As such the decision was taken that your actions were deemed to constitute unsatisfactory attitude to work, customers or other employees which constitutes a major misconduct and taking part in activities which result in adverse publicity to ourselves or which cause us to lose faith in your integrity and a breach of confidentiality both of which constitute gross misconduct.

In addition such actions are regarded as a breach of mutual trust and confidence which is sufficient to repudiate the contract of employment."

85. The letter advised the claimant that he had been summarily dismissed as of 16 January 2017. The letter further advised him of his right of appeal.

86. In separate letters dated 23 January 2017, Mr Smyth and the claimant appealed the dismissal decisions. They stated that the pay-slip had been given to them in their capacity as elected trade union representatives and that it had concerned a pay issue. Both stated that they believed they had been penalised by the company for their trade union membership and activities.

The disciplinary appeal hearings were arranged for 2 February 2017.

87. In the claimant's appeal hearing, the claimant was represented against by Mr George Brash of Unite. The claimant disclosed, for the first time, the identity of the person who he stated had handed him Mr Clarke's pay-slip. He stated that it had been handed to him by Mr McMahon. He stated that Mr McMahon had asked him what ' the union was going to do about this'.

The claimant did not state in the course of this appeal meeting that he was acting under direct orders or instructions from Mr Smyth. However, he stated that he had left the pay-slip with Mr Smyth and that they had agreed that he should post it to Unite.

88. The appeal hearing was adjourned pending an interview on 3 February 2017 when Mr McMahon was asked about the claimant's allegation. Mr McMahon denied that he had given Mr Clarke's pay-slip to the claimant and asked why, as a non-union member, he would have approached a trade union representative and asked that trade union representative what he was going to do about it. He stated that there had been a history between him and the claimant and that he believed the claimant had got him a warning in relation to not wearing personal protective equipment.

89. Following that interview, the claimant's appeal meeting resumed on 10 February 2017. At that resumed appeal meeting the claimant disclosed, again for the first time, that three named individuals knew about the pay-slip, ie Ronnie Woods, Mervyn Bates and Andrew Cupples.

90. An interview took place on 15 February 2017 with, separately, with each of those three named individuals. None of those three individuals were able to give evidence that they knew that Mr McMahon has provided the pay-slip to the claimant.

91. The initial appeal meeting in relation to Mr Smyth took place on 2 February 2017. He argued that he had never meant to upset anyone but accepted that he had received a pay-slip and that it had been sent off-site to Unite. That appeal meeting had been similarly postponed following the claimant's allegation that Mr McMahon had furnished the pay-slip to him. It reconvened on 10 February 2017. Mr Smyth then maintained that the claimant had advised him ' from the word go' that Mr McMahon had given him the pay-slip. However that is not what Mr Smyth had disclosed in relation to the initial investigation of Mr Clarke's grievance. In the investigation meeting on 15 September 2016, Mr Smyth was asked if the claimant had said who had given him the pay-slip. He had replied ' No'.

92. Mr Smyth and the claimant were separately advised on 27 February 2017 that their appeals had been dismissed. In the letter to the claimant, each of the points raised by the claimant in his appeal was separately dealt with. Mr Francey, the Managing Director who conducted the appeal stated that:-

"I consider that you have acted in a way that was an unsatisfactory attitude to work and another employee, namely Ian Clarke, by having possession of his pay-slip which was his property and sending it off-site to a third party without his consent or knowledge of its whereabouts."

He further stated:-

"I cannot see how you have been penalised for your trade union membership as I consider any employee who had been found to have acted in the same way in similar circumstances would have been dealt with in the same manner.

I do not accept that you have been unfairly dismissed due to the fact that you are an elected trade union representative. The decision was taken because of your conduct which cannot be directly connected to the fact that you are a trade union representative.

You stated that the company had acted in an extreme manner that and that the allegation in the letter of dismissal had no substance. I do not agree, and upon consideration of all the information available, I conclude that the matter was dealt with thoroughly and reasonably and therefore it is with regret that I am upholding the decision to terminate your employment."

93. The letter to Mr Smyth was in similar terms.

Decision

Articles 136 and 73

94. It is clear that both the claimant and Mr Smyth had been active trade union representatives. However, the claimant's primary trade union role had been as a health & safety representative. His statement sets out the details of his activity and indicates that he had raised various health & safety issues over 2015 and 2016. None of these issues appear to have been in any way remarkable, or of a sort that would have persuaded the respondent to get rid of him under the guise of a misconduct dismissal.

95. It also seems clear that there had been a degree of friction between Ms Wilkinson and the claimant. Ms Wilkinson had been, for a time, the member of management responsible for health & safety in the plant. Ms Wilkinson felt that the claimant's personal manner had been unpleasant and rude. She complained about that manner and on 19 August 2015, the claimant agreed to be more respectful in his dealings with Ms Wilkinson. That would appear to have ended that particular difficulty. That had occurred over one year before the pay-slip was handed to the claimant and it seems highly improbable that it had any relevance to the disciplinary proceedings or to the dismissal.

96. Crucially, Ms Wilkinson moved to an associated company in March 2016, some five months before the issue arose with the pay-slip and some nine months before the claimant was dismissed by Mr Shiels. Ms Wilkinson had played no part in either the investigation of Mr Clarke's grievance, the disciplinary hearings or the appeal hearings. She had not been consulted about, or in any way involved, in the claimant's dismissal.

97. The evidence put forward on behalf of the respondent by Mr Hamill, Mr Shiels and Mr Francey was clear and consistent. They had all accepted that the pay-slip had been given to the claimant because he had been a trade union official. That fact had not been the basis of the disciplinary action. The disciplinary action had concerned the manner in which he, and Mr Smyth, had dealt with the pay-slip after that point. It concerned their failure to return that pay-slip to Mr Clarke as his personal confidential property, their failure to respond to his request for its return, the delay in returning that pay-slip and the fact that it had been delivered off-site to the Unite office in Ballymena. The respondent did not regard these matters as normal trade union activity and the tribunal concludes that it was correct not to do so.

98. Trade union activities cannot be used as a cloak or as an excuse for misconduct which would otherwise merit disciplinary action. The tribunal is satisfied, on the basis of the evidence before it, that the respondent had invoked the disciplinary process and had dismissed the claimant because of what they regarded as gross and major misconduct on his part. Trade union activities and his involvement in the trade union played no part in their decision-making process. Any other employee engaged in similar activity would have been subjected to the disciplinary process in the same way.

99. The claims under Articles 136 and 73 are dismissed.

Unfair dismissal - Article 126

100. The tribunal concludes that the claimant had been dismissed for misconduct. For the reasons set out above, there are no grounds to conclude that the disciplinary action had been invoked, or that the claimant had been dismissed, on the ground of trade union activity. Any other employee who had acted similarly in relation to another employee's pay-slip would have been subject to the disciplinary process.

101. Mr Shiels and Mr Francey were emphatic in the course of their cross-examination; the claimant and Mr Smyth had been equally culpable in their eyes. Both had been dismissed on that basis for gross misconduct.

102. It is clear that Mr Smyth and the claimant had both agreed to the pay-slip being delivered to the Unite offices. It is also clear that both had commonly acted jointly in relation to trade union issues and grievances etc.

103. However, it is clear on the facts and should have been clear to the respondent that Mr Smyth had been the senior elected trade union official. The claimant, on receipt of the pay-slip belonging to Mr Clarke, had gone directly to Mr Smyth for advice. He had ' escalated the situation'. At that point, the claimant did not know what to do with the pay-slip. He had sought advice from a senior union official. Mr Sheils had accepted that Mr Smyth had made the decision to forward the pay-slip to the Unite office in Ballymena.

As an aside, the tribunal simply cannot understand the purpose of that decision. The only matter which would have been of interest to the trade union was the fact that Mr Clarke was receiving a higher hourly rate. They had that information. It had already been raised with Mr Hamill on 29 August 2016 by Mr Smyth, Sending the pay-slip to the Unite office and even retaining the pay-slip within the plant, would have served absolutely no purpose.

That said, the pay-slip had been retained for a brief period by Mr Smyth who considered what to do with it. He then instructed the claimant to deliver it to the Unite office. That seems clear on the facts and had been accepted by Mr Shiels and Mr Francey. It had not been the decision or even the suggestion of the claimant to send the pay-slip to Unite. While the claimant had agreed with that instruction, and while he had not dissented from that instruction, it was clear that the instruction had been given by the senior union official to the junior official. It is difficult to see how a reasonable employer, acting reasonably, could have regarded Mr Smyth and the claimant as equally culpable.

The claimant and Mr Smyth had presented a united front during the disciplinary proceedings. The claimant has only raised his junior status as a trade union official in the course of the tribunal hearing. That said, it had been obvious throughout to the respondent that Mr Smyth had been the senior union official and that he had made the decision to send the pay-slip to Unite's office in Ballymena.

104. It is clear that the claimant had been guilty of misconduct in retaining the pay-slip and in delivering it to the Unite office. What he had done was wrong. The pay-slip was a personal document. It was the private property of Mr Clarke and was confidential. The claimant had no authority from either Mr Clarke or the respondent to take the pay-slip off site and to give it to anyone else. He should have known better. Judged objectively, the claimant had been guilty of misconduct. However any reasonable employer acting reasonably would have had to take into account all the circumstances of the case, including the relative seniority and greater culpability of Mr Smyth.

105. Mr Clarke approached both the claimant and Mr Smyth shortly after the pay-slip had been the subject of discussion on the shop floor. Neither had returned the pay-slip to him even though both would have known by that stage that Mr Hamill had instructed Mr Smyth (not the claimant) to return the pay-slip immediately to Mr Clarke. Both ' blanked' Mr Clarke and neither indicated whether the pay-slip was and neither offered to return it. That said, Mr Smyth had also told Mr Clarke that he was not getting the pay-slip back ' until he had finished with it'. There appears to have been more aggravation and discord in the course of the meeting between Mr Clarke and Mr Smyth than in the meeting between Mr Clarke and the claimant. Again, Mr Smyth had been more culpable than the claimant in relation to this aspect of the misconduct.

106. Mr Shiels and Mr Francey appeared to have assumed that the instruction which Mr Hamill had given Mr Smyth would have been passed on to the claimant for compliance. However that was never checked and it seems clear that that instruction had not been passed on to the claimant in those terms. He had not been told directly by either Mr Hamill or by Mr Smyth to return the pay-slip immediately to Mr Clarke. Even though he should have known that that is what he should have done, Mr Smyth was more culpable than the claimant in relation to this aspect of the misconduct; not complying promptly with Mr Hamill's instruction. Mr Smyth had remained in charge of the situation and he had ultimately returned the pay-slip to Mr Clarke.

107. Therefore the tribunal concludes that a reasonable employer acting reasonably would have drawn a distinction between the culpability of Mr Smyth and that of the claimant.

108. Looking at the definition of gross misconduct as set out in Connolly (see above) and looking at all the circumstances of the case, the tribunal concludes that a reasonable employer acting reasonably would not have dismissed the claimant in these circumstances. The claimant had a clear record. He had been acting under direction. He had taken no part in the retention or eventual return of the pay-slip. His involvement had been limited to bringing the pay-slip to Mr Smyth for advice, forwarding the pay-slip to Unite as instructed and being less than co-operative with Mr Clarke. A reasonable employer would not have regarded the claimant's misconduct as sufficiently serious to warrant a dismissal for a first offence.

109. While a reasonable employer could reasonably have dismissed Mr Smyth in all these circumstances, the failure on the part of the employer to draw a distinction between Mr Smyth and the claimant is crucial.

110. Although it does not alter this decision, the tribunal concludes that the correct procedure had been followed by the respondent. The investigation had been thorough and fair. The respondent had concluded on reasonable grounds that the claimant had been guilty of misconduct.

111. The tribunal therefore concludes that the summary dismissal for gross misconduct in this matter was unfair for the purposes of Article 126 of the 1996 Order.

Remedy

Contributory conduct

112. The tribunal concludes that there had been significant contributory conduct on the part of the claimant. His actions had been significantly culpable. On receipt of the pay-slip from Mr McMahon, the claimant should have returned it to Mr Clarke or to the pay office. It was a confidential and personal document. Objectively judged, the claimant's failure to do so amounted to misconduct.

He then gave the pay-slip to Mr Smyth the senior Unite official. While that action was to some extent understandable, it was still wrong. He should have known that it was wrong.

Accepting the instruction from Mr Smyth to deliver the pay-slip to Unite was again wrong. The fact that Mr Smyth was the senior official does not totally absolve the claimant from responsibility for that action. He could have refused to comply. Instead he agreed with the instruction.

When approached by Mr Clarke, the claimant did not assist Mr Clarke in the return of his property. He did not disclose its whereabouts and he did not offer to secure its return immediately.

Assessing as best as we can, we fix the percentage contributory conduct at 50%. It was clearly significant, mitigated only by his reliance on Mr Smyth's instructions and by his erroneous belief that he had been entitled to act in the way he had, as part of trade union activity.

113. This 50% reduction should be applied to both the basic and the compensatory awards.

114. The basic award is calculated as:-

Gross weekly wage £ 387.27

Age at dismissal 39

Completed years of service 8

£387.27 x 8 £3,098.16

Less 50% reduction £1,549.08

Future Loss

115. In unfair dismissal cases, the object of the compensatory award is to compensate employees for the financial loss caused by their dismissal. The object is not to punish employers for their wrongdoing. An award should therefore not be increased either out of sympathy for the employee or as a means of expressing disapproval - Lifeguard Assurance Limited v Zadrozny [1977] IRLR 56.

116. In Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727, the House of Lords determined that the power to award compensation in respect of unfair dismissal is limited to a financial loss attributable to that dismissal. It does not include non-economic loss such as injury to health or injury to feelings.

117. In the Zadrozny decision, Philips J stated:-

"The [employment] tribunal, in assessing compensation, should not fall into the benevolent error of awarding compensation, not for some loss due to the unfair nature of the dismissal, but more out of sympathy for the predicament in which the employee finds himself."

118. In Harvey on Industrial Relations and Employment Law, Volume 1, Division D1, at Paragraphs 2535 - 2540, two questions are indicated for the tribunal when assessing future loss. Firstly, the tribunal must consider what would have happened but for the unfair dismissal. It has to determine whether the employee would have continued in employment indefinitely or only for a limited period. Secondly, the tribunal must calculate the actual loss for the period which is considered appropriate.

119. The fixing of a relevant period for calculating future loss is not an exercise which can be done with mathematical precision on empirical evidence. To use the term adopted in Harvey, Volume 1, D1, Paragraph 2567, it is a highly speculative exercise. In Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 , the Court of Appeal (GB) concluded that an employment tribunal had been wrong to award compensation by considering loss over the claimant's entire remaining career, subject to a reduction to reflect the chance of the claimant leaving the respondent's employment in any event. The Court stated:-

" I agree with Mr Jeans that it will be a rare case where it is appropriate for a court to assess compensation over a career lifetime, but that is not because the exercise is in principle too speculative. If an employee suffers career loss, it is incumbent on the tribunal to do its best to calculate the loss, albeit that there is a considerable degree of speculation. It cannot lie in the mouth of the employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss he actually suffers. Furthermore, the courts have to carry out similar exercises every day of the week when looking at the consequences of career shattering personal injuries. Nor do I accept a floodgates argument. The job of the courts is to compensate for loss actually suffered; if in fact the court were to conclude that this required an approach which departed from that hitherto adopted, then we would have to be willing to take that step.

However, in my view the usual approach, assessing the loss up to the point where the employee would be likely to obtain an equivalent job, does fairly assess the loss in cases - and they are likely to be the vast majority - where it is at least possible to conclude that the employee will in time find such a job. In this case the tribunal has in effect approached the case on the assumption that it must award damages until the point when it can be sure that the claimant would find an equivalent job.

In my judgment, that is the wrong approach. In the normal case if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The tribunal's best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the tribunal's prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide."

120. The claimant in his statement of loss for the purposes of the hearing has adopted the common practice of first claiming loss of net earnings to the date of hearing. That is the common practice in cases of this type and is based on the decision of the National Industrial Relations Court (NIRC) in Norton Tool Company Ltd v Tewson [1973] 1 All ER 183.

121. The textbook in this area, 'Employment Tribunal Remedies' by Korn & Sethi 4 ^th Edition states at Paragraph 6.38 that in this particular case, 'the NIRC said that compensation should be assessed under four headings'. It continues that the first of those headings should be:-

"Immediate loss of earnings - that is, the loss of earnings between the date of dismissal and the date of hearing."

122. However the NIRC does not appear to have said that in terms in the Norton Tool decision. The NIRC when considering the correct manner for assessing compensation in relation to the loss of employment did not say that the first element in such compensation should be the loss of wages up to the date of the hearing; whether that hearing is by an employment tribunal or by some other judicial body. The date of any such hearing is subject to considerable variation and is impacted upon by a range of matters such as the availability of parties, the availability of counsel, the availability of witnesses and the availability of listing time. In real terms there can on occasion be significant delays in concluding cases and equally cases can move exceptionally quickly on occasion. In the tribunal's view, it is highly unlikely that the NIRC, or anyone else had ever intended that a significant element of compensation should be determined by such a random event as the date of the hearing. The statutory basis for assessing compensation is to assess actual loss. It is not appropriate to assess a significant portion of actual loss by fixing that proportion to the listing dates given in that case.

123. In the Norton Tool decision, the NIRC separated the component parts of appropriate compensation into four headings:-

(a) immediate loss of wages;

(b) manner of dismissal;

(d) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.

In relation to the first category, ie ' immediate loss of wages', the NIRC was not, as appears to be suggested in the textbooks and in the claimant's submission, stating that compensation should be awarded automatically or semi-automatically in relation to loss of earnings up to the date of hearing which determines remedy. It was in that context looking at the requirement then contained within the Contracts of Employment Act 1973 in relation to notice pay on the termination of employment. It was focusing therefore on the amount of notice pay that an unfairly dismissed employee would have received if he had been dismissed in the proper manner.

The NIRC stated:-

" (a) Immediate loss of wages

The Contracts of Employment Act 1963, as amended by the Industrial Relations Act 1971, entitles a worker with more than 10 years' continuous employment to not less than six weeks' notice to terminate his employment. Good industrial practice requires the employer to either give this notice or pay six weeks' wages in lieu. Mr Tewson was given neither. In an action for damages for 'wrongful' as opposed to 'unfair' dismissal he could have claimed this six weeks' wages but would have had to give credit for anything which he earned or could have earned during the notice period. In the event he would have had to give credit for what he earned in the last two weeks, thus reducing the claim to about four weeks' wages. But if he had been paid the wages in lieu of notice at the time of his dismissal, he would not have had to make any repayment upon obtaining further employment during the notice period. In the context of compensation for unfair dismissal we think that it is appropriate and in accordance with the intentions of Parliament that we should treat an employee as having suffered a loss insofar as he receives less than he would have received in accordance with good industrial practice. Accordingly no deduction has been made from his earnings during the notice period."

124. The Norton Tool decision concerned a claimant who had found alternative and comparable employment four weeks after dismissal. It is not possible to discern from this decision any general proposition that an unfairly dismissed person should automatically, or presumptively, receive compensation for loss of wages up to the date of the hearing.

125. Therefore the issue in the present case and indeed in all such cases appears to be the speculative exercise of assessing when the claimant could be expected to obtain alternative equivalent employment and therefore fixing an appropriate point for future loss which should run from the date of dismissal and which should not depend in any way on the date on which the tribunal determined remedy .

As the Court of Appeal (GB) said in Wardle (see above), the tribunal should assess the loss up to the point at which the claimant would be likely to get another job, while recognising that this is a very speculative and unscientific exercise.

126. As far as the compensatory award is concerned, the tribunal must focus on any financial loss which was consequent on the dismissal and which was attributable to the actions of the former employer.

Compensatory Award

127. The claimant commenced employment as an Agency Worker with Grafton on 3 March 2017, some seven weeks after his termination and just after he was notified of the decision of Mr Francey to reject his appeal against that dismissal. He has worked continuously as an Agency Worker since then. His earnings have been lower than previously - £258.51 per week rather then £314.56.

128. The claimant accepted that he had never sought or applied for higher paid employment since his dismissal. He had a duty to mitigate his loss. He has only partly fulfilled that duty.

129. The tribunal has to determine, as an industrial jury, the appropriate figure for future loss from the date of termination; not from the date of hearing or from any other random date. The figure must reflect the actual financial loss and must be just and equitable in all the circumstances of the case. It cannot be in respect of an indefinite period.

130. The tribunal concludes that the claimant could have obtained similarly or better paid employment within 52 weeks of the date of his termination. Future loss is therefore to be assessed over that period.

131. Loss of earnings from the respondent £314.56 x 52 weeks = £16,357.12

Less earning from Grafton £258.51 x 45 weeks = £11,632.95

£ 4,724.17

132. Pension loss was claimed initially but was not supported by evidence or by calculation. It also seems clear that the claimant has opted out of pension arrangements in Grafton. Pension loss has not been proven and in any event appears minimal. It is therefore disregarded.

133. The figure for the compensatory award is increased by £500.00 to take account of the loss of statutory rights.

134. The compensatory award is also reduced by 50% to take account of contributory conduct.

135. The compensatory award is therefore calculated as:-

Loss of earnings £4,724.17

Loss of statutory rights £ 500.00

£5,224.17

Less 50% contributory conduct £2,612.08

136. The total award is therefore:-

Basic Award £1,549.08

Compensatory Award £2,612.08

Total £4,161.16

Recoupment

137. The claimant appears to have been in receipt of Jobseeker's Allowance for a brief period after dismissal : between 16 January 2017 and 3 March 2017. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996, as amended, apply to this decision. The attention of the parties is drawn to the attached Recoupment Notice, which forms part of this decision.

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

Vice President

Date and place of hearing: 28 - 29 November 2017, 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 >> Pearson v Nu-Track Ltd [2017] NIIT 01800_17IT (13 December 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01800_17IT.html Cite as: [2017] NIIT 01800_17IT, [2017] NIIT 1800_17IT

Industrial Tribunals Northern Ireland Decisions