Berezovska v Teletech UK Ltd [2011] NIIT 02841

THE INDUSTRIAL TRIBUNALS

CASE REF: 2841/10

CLAIMANT: Irina Berezovska

RESPONDENT: Teletech UK Ltd

DECISION

It is the unanimous decision of the Industrial Tribunal that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr P Killen

Mrs B Heaney

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Ms Karen Moore of Engineering Employers Federation (EEF).

SOURCES OF EVIDENCE

1. The claimant gave evidence on her own behalf. Mr Gordon Riddiough, Ms Fiona Williamson and Mr Emmanuel Mambretti gave evidence on behalf of the respondent.

2. Additionally, there was a bundle of agreed documents before the tribunal. A document that had not previously been disclosed to the claimant was provided to her at the outset of the hearing, but the tribunal allowed the claimant time to review this document before commencing the hearing of this case.

THE CLAIM AND THE DEFENCE

3. The claimant claimed that she had been unfairly dismissed and the respondent denied this claim.

THE RELEVANT LAW

4. The right not to be unfairly dismissed is set out in Article 126 of the Employment Rights (Northern Ireland) Order 1996 and in reaching its decision the tribunal also had regard to Article 130 of the same Order.

THE FACTS

5. The claimant was employed by the respondent as a team leader working within its Sky centre and she worked for the respondent from 25 February 2008 to 25 October 2010.

6. The respondent operates as a call centre including among its clients, Sky. The claimant had formerly worked within another campaign of the respondents. Previously, the claimant had been a team leader within another section of the respondent’s business and was redeployed to be a team leader in its Sky campaign. This involved an amount of retraining and work-shadowing. The claimant went through the respondent’s prescribed programme for retraining for the Sky campaign and the events to which this tribunal relate happened on the claimant’s first day working in the Sky campaign after her period of retraining.

7. It is important to note that the respondent operated a very strict security policy in relation to its Sky campaign. The part of the building that housed the Sky operation was delineated by a painted line and this meant that the employees of the respondent involved in the Sky campaign had to stay within it and were not supposed to move to other parts of the building. Similarly, employees involved in other campaigns were supposed to stay outside the line that delineated the start of the Sky operation.

8. The respondent operates a specific code of conduct within the United Kingdom which sets forth the “ethical and legal standards of business conduct…” expected from all its employees. This code of conduct was required to be reviewed yearly by each employee. This code of conduct was not a document that was issued at the start of employment and then forgotten about. Employees of the respondent were required to update themselves on the code and then complete a test to show that they had done so. This exercise was computer based and was carried out yearly. The particular part of this code that the tribunal was required to consider was found on page 8 of the document and related to investigations in discipline and confidentiality, retaliation, and false reports. The most relevant section of the investigations in discipline provisions stated as follows:-

“The company expects every employee to fully co-operate with any investigation into an alleged violation of the Code of Conduct. Failure to co-operate, failure to be truthful, or attempting to impede an investigation may lead to disciplinary action, up to and including termination.”

9. The requirement to be truthful was underwritten in the section relating to confidentiality, retaliation and false reports and the most relevant provision states as follows:-

“… Accordingly, any employee found to have engaged in this type of activity may be subject to disciplinary action, up to and including termination.”

10. On 18 October 2010 the claimant was working a shift from 1.30 pm to 9.30 pm. Within the hours of 7.00 pm to 9.00 pm during this shift, Mr Gordon Riddiough, a service delivery manager and the claimant’s direct line manager of the Sky campaign, had tried to contact the claimant and other team leaders a number of times by telephone. Whilst the other team leaders reporting to Mr Riddiough were able to be contacted, the claimant was not. The other team leaders were not able to locate the claimant within the Sky call floor. In or around the hour of 9.07 pm the claimant told a colleague, Reinhard Smeilus, that she was going home as there was nothing for her to do. The claimant’s version of that conversation was that she was going home because she felt ill.

11. At the start of the claimant’s shift on 19 October 2010, Mr Gordon Riddiough wanted to hold an investigatory meeting with the claimant. Initially, it was difficult to find the claimant but eventually the meeting was held at 3.50 pm by Mr Gordon Riddiough with the claimant, with Ms Kate Mellon (from Human Resources) in attendance. The claimant was told that it was an investigatory meeting and it was important for her to be open and honest in her answers. Eventually Mr Riddiough asked the claimant what she was doing between 7.00 pm and 9.00 pm because when he called to speak to the whole team nobody could find her between those times. The claimant said that she was with Reinhard Smeilus and then her agents. The agents that she mentioned were Lauren and Jay. Mr Riddiough then conducted an investigation with Reinhard Smeilus on the same day. He confirmed that the claimant had spent in or around 30 minutes (maximum) of the missing two hour period with him but that he had seen her at the other end of the floor talking to someone from the NISSAN part of the respondent’s business. Mr Smeilus went on to say that she was hardly to be seen on the Sky part of the floor towards the end of her shift and that she left at 9.07 pm. Mr Smeilus alleged that the claimant refused to take “escalated calls”. On that particular shift there were a great number of escalated calls and the other team leaders were in need of the assistance of the claimant in helping them to deal with this increased volume of telephone traffic. Ms Linda Warnock was also interviewed on 19 October 2010. Ms Warnock was the duty manager for that shift and she confirmed that she hardly saw the claimant at the latter end of her shift. Ms Warnock confirmed that it had been a very busy shift and the claimant’s refusal to take escalated calls had been adversely commented upon by Reinhard Smeilus.

12. A printout of the card swipe history for the claimant’s card showed that she had indeed left the premises of the respondent at 9.07 pm on the evening of 18 October 2010.

13. The claimant was suspended on 19 October 2010 and received a letter confirming this from the respondent on that date. The suspension was decided upon by Mr Riddiough and Ms Fiona Williamson who was his line manager. The reason given in the letter of 19 October 2010 was “alleged misconduct”.

14. On the same day, the claimant was given a letter dated 19 October 2010 inviting her to a formal disciplinary meeting on Thursday, 21 October 2010. The purpose of the meeting was set out as follows:-

“The purpose of this meeting is to discuss:-

· your alleged misconduct in relation to unauthorised absence from work during your shift on 18 October 2010 between approximately 7.00 pm and 9.00 pm; and

· that you left the building at 9.07 pm on 18 October when your shift was from 1.00 pm to 9.30 pm;

· your alleged gross misconduct in that you were dishonest when questioned in relation to your absence from work on 18 October advising:-

· that you have spent the period between 7.00 and 9.00 pm with another team leader;

· that you were on the Sky call floor between 7.00 and 9.00 pm;

· that you were not asked to take an escalated call during yesterday’s shift.”

15. The claimant was advised of her right of accompaniment and given notes of the investigatory meetings held with Reinhard Smeilus and Linda Warnock as well as the notes of the meeting held with her. The Teletech Disciplinary Policy and a copy of the swipe card data for her pass were also supplied. The claimant was advised that the meeting could result in disciplinary action which could result in the termination of employment.

16. The disciplinary hearing took place on 21 October 2010 and Mr Gordon Riddiough and Ms Fiona Williamson attended on behalf of the company. The claimant attended with her work colleague, Tomas Anderson. Although Mr Riddiough conducted most of the questions and Ms Williamson took notes, it appeared from the evidence that Ms Williamson had an input into the decision of the disciplinary meeting. During the disciplinary meeting the claimant explained that she had felt sick and left her shift at 9.07 pm as a result. She alleged that she told Reinhard Smeilus that she was leaving early because she felt bad. The claimant did not follow procedure of the respondent in that she did not inform the Duty Manager that she was leaving because she was ill. It would have also been open to her to send an e-mail to Mr Riddiough as he was available 7 days a week, 24 hours a day on his computer to those reporting to him. Contrary to what the claimant had said at the investigatory meeting she then informed the disciplinary panel that she was with Alessandro Bianco in the NISSAN section of the respondent’s premises as she required his help in completing an application for a quality assurance position with the respondent. It was put to the claimant that she said that she had sat with Reinhard all the time. The claimant then confirmed that she did not sit with Reinhard the whole time and as she had no access to her working e-mail or Sky tools she had no tools to do the duties of her role. There was a divergence in the evidence between the version given by the claimant and the version given by the witnesses for the respondent. It was contended on behalf of the respondent that the claimant had enough tools to carry out 60 to 70% of her job. The tribunal preferred the evidence given on behalf of the respondent as the claimant’s evidence displayed some inconsistencies. Her version of the events seem to change within her own evidence. The claimant also contended that she had an agreement with Mr Riddiough not to take escalated calls. Mr Riddiough confirmed in the meeting and in his evidence to the tribunal that this “agreement” related only to the “nesting” period (the respondent’s term for re-training). It appeared to the tribunal that the claimant spent the time from 7.00 pm to 8.15 pm during her shift of 18 October 2010 with Mr Alessandro Bianco at his computer in the NISSAN section. The disciplinary meeting adjourned so that the respondent could investigate the allegation concerning Mr Bianco.

17. An investigatory meeting was held with him on 22 October 2010 and he confirmed that the claimant had spent from 7.00 pm to 8.20 pm approximately with him as he was helping with her with her quality assurance interview. The respondent confirmed this evidence by reference to its CCTV footage of the NISSAN area which was viewed by Ms Kate Mellon of the Human Resources Department. She confirmed that from approximately 7.12 pm to 8.13 pm, the CCTV footage confirmed what Mr Bianco told the respondent.

18. On 25 October 2010 the disciplinary meeting was reconvened and the claimant was given the result of the deliberations of the panel. She was told that she was dismissed and that this was for gross misconduct. A letter dated 25 October 2010 confirmed this outcome and advised her of her right of appeal to Emmanuel Mambretti, the Site Director.

19. By a letter dated 27 October 2010 the claimant exercised her right of appeal to Mr Mambretti. The grounds were:-

“Misunderstanding about escalated calls;

my word against another team leader where it is not evident;

I had no issues regarding my behaviour or performance since I started in Teletech since 25 February 2008 until this situation;

the decision to dismiss me was taken by my Line Manager, which contradicts to the company policy.”

20. Mr Mambretti arranged an appeal meeting with the claimant on 2 November 2010. This meeting actually took place on 8 November 2010. Mr Mambretti considered all the arguments put forward by the claimant. Additionally, the claimant tried to allege that she had been confused by the term “call floor”. She had considered that this meant that she was on the call floor even when she was in the NISSAN area. However, the tribunal does not consider that the claimant could validly contend this as the evidence clearly showed that the claimant was not involved on Sky business within the Sky section of the respondent’s premises at the time in question. Furthermore, as it was not disputed that the Sky section was delineated by a painted line running through the respondent’s premises, the tribunal accepts the evidence of the respondent that there could be no doubt about what was meant. The tribunal is supported in reaching this conclusion by a survey of the notes of the claimant’s responses to the investigatory meeting whenever the allegation about leaving the “Sky” floor was specifically put to her in those terms. The tribunal does not consider that there was any real confusion in the mind of the claimant. The claimant additionally tried to argue that she had thought there was confusion between being disciplined for “alleged misconduct”, as opposed to “alleged gross misconduct”. Essentially, the claimant was trying to argue that she did not realise she could be dismissed. After a full survey of the evidence, and in particular, speaking again to Mr Riddiough and Ms Williamson, Mr Mambretti upheld the decision of the disciplinary panel. He considered that in the formal disciplinary invite letter of 19 October 2010 that it was clear that she was being disciplined for gross misconduct and that this could end up in her dismissal. He also concluded from the evidence that the claimant was clear that being absent from the floor meant from the Sky floor. The claimant’s argument that her dismissal was not in line with the company disciplinary policy as it was carried out by Mr Riddiough rather than Ms Williamson had no merit. It was the evidence before him that Ms Williamson had been involved in the decision to dismiss the claimant. Mr Mambretti also dismissed the claimant’s allegations of a special arrangement whereby she did not have to take escalated calls and that she did not have the proper tools to do her job. The claimant had demanded 6 months salary as compensation. Mr Mambretti refused this request and did not consider that the claimant’s dismissal had in any way been unfair.

CONCLUSIONS

21. In considering any case involving a dismissal for misconduct, an Industrial Tribunal will consider the case of British Home Stores Ltd v Burchell [1978] IRLR 379. This case advised a 3 step approach as follows:-

“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of this misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. … First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And, third, the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

The tribunal considers that the respondent did fulfil the 3 parts of this test. Plainly, there was evidence that the claimant was missing for part of her shift on 18 October 2010 and in the investigatory meeting, the claimant did not give a full explanation of where she had been. While the claimant did not admit, and she was very firm in her evidence to the tribunal on this point, that she had lied, the tribunal considered that she had not been fully frank with her employer in the investigatory meeting and had led her employer to believe that she had been effectively shadowing Mr Reinhard Smeilus for most of the shift. The tribunal considers that on these grounds the respondent had reasonable grounds to believe that there had been misconduct.

Upon investigation, it was discovered that the claimant had not spent the whole of the period in question (7.00 pm to 9.00 pm) with Mr Smeilus and some of her operatives. When this was put to the claimant in the disciplinary meeting she then gave the explanation that she had been in the NISSAN area with Mr Alessandro Bianco. The company contended that the claimant had not been fully truthful with it and as such was guilty of gross misconduct. The claimant tried to argue that it was not plain from the disciplinary policy that failure to be fully truthful was an offence classified as gross misconduct. Whilst it is true that this is not a specific offence set out in this section of the disciplinary policy, it is clear that the offences that are set out are only examples of actions that will be classified as gross misconduct. However the disciplinary invite letter it was plain how the company viewed the conduct of the claimant and that this could lead to dismissal.

22. The claimant also argued that the company had not carried out as much investigation as was reasonable in all the circumstances of the case as it had not sought to interview her operatives, Lauren and Jay. However, the company considered that as Mr Bianco cooberated the claimant’s version of where she had been from 7.00 pm to 8.15 pm during her shift, there was no need to investigate further, and the tribunal does not consider this rendered the investigation unreasonable.

23. Once an employer has satisfied the tribunal in relation to the Burchell tests, the tribunal must then consider whether or not dismissal was within the band of reasonable responses within which one employer might seek to dismiss on the evidence before it but another employer might not. Given the importance of the employer’s Code of Conduct and the fact that it is refreshed in the minds of the employees of the respondent every year, the tribunal considers that dismissal was within the band of reasonable responses in the circumstances of this case. The claimant effectively had not co-operated in the investigation. It was only at the disciplinary stage that she came up with the more truthful version of events. The respondent places great emphasis on honesty from its employees. As it numbers Sky amongst its client base, and Sky has high security requirements, the tribunal considers that the respondent is entitled to require total honesty from its employees and that it is not disproportionate behaviour from the respondent to dismiss when an employee has been found to be less than truthful.

24. On the evidence before us, the tribunal did not consider that there had been any breach of the statutory disciplinary procedure set out in Schedule 1 to the Employment (NI) Order 2003. The tribunal also considered whether the respondent had been in breach of its own procedures as Mr Riddiough appeared to conduct the investigation and the disciplinary process when the policy of the respondent stated that the disciplinary process would be carried out by Mr Riddiough’s line manager. The tribunal is satisfied on the evidence that the line manager, Mr Riddiough, was fully involved in the dismissal decision. However, if this is a breach of the respondent’s own procedures, it was also the case that there was strong evidence from Ms Williamson that even if she had been making the decision herself she would still have decided to dismiss the claimant and the tribunal considers that the requirements of Article 130A(2) which states:-

“Subject to Paragraph (1), failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

25. Furthermore, as it is settled law that a fair appeal can negate any unfairness of a disciplinary stage in the process, we consider that Mr Mambretti’s appeal was

entirely fair both in how it was conducted and the areas it covered. Therefore, we consider that there was no breach of the respondent’s own procedures and that the dismissal was not procedurally unfair on this ground. Accordingly, the claimant is not unfairly dismissed.

Chairman:

Date and place of hearing: 20 & 21 April and 5 May 2011, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Berezovska v Teletech UK Ltd [2011] NIIT 02841_10IT (24 June 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02841_10IT.html Cite as: [2011] NIIT 02841_10IT, [2011] NIIT 2841_10IT

Industrial Tribunals Northern Ireland Decisions