Warner v Mid Ulster and South Tyrone As... Derek Short Ivor Paisley [2013] NIIT 01399

THE INDUSTRIAL TRIBUNALS

CASE REF: 1399/12

CLAIMANT: David Warner

RESPONDENTS: 1. Mid Ulster and South Tyrone Association for Single Homeless Ltd

2. Derek Short

3. Ivor Paisley

DECISION

The unanimous decision of the tribunal is that the first respondent unfairly dismissed the claimant and the tribunal awards him £23,119.60 compensation. The tribunal dismisses all claims against the second and third respondents and rejects the claimant’s contention that his dismissal was as a result of a public interest disclosure or victimisation.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr T Hesketh

Mr B Hanna

Appearances:

The claimant was represented by Mr Eamonn Foster, of counsel, instructed by
Barry Fox Solicitors.

The respondents were represented by Mr Neill Phillips, of counsel, instructed by Worthingtons Solicitors.

Sources of Evidence

1. The tribunal heard evidence from the claimant and on his behalf from Harry Hutchinson. The tribunal, on behalf of the respondents, heard evidence from Derek Short, Ivor Paisley, Marissa Canavan, Derek Duncan, Chris Symington, Gordon Johnston and Stephen Parke. The tribunal also received eight bundles of documents amounting to 896 pages, a chronology and skeleton arguments and submissions from both parties in writing.

The Claim and Defence

2. The claimant claimed that he had suffered discrimination on the ground of race and sex, unfair dismissal simpliciter, unfair dismissal by reason of having made a public interest disclosure and victimisation. The respondents denied the claimant’s claims in their entirety.

The Issues

3. Prior to the hearing on 22 April 2013 the claimant had withdrawn his claims for discrimination on the grounds of sex and race.

The remaining issues for determination were:-

(1) Legal Issues

(a) Unfair Dismissal

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

(ii) Was the claimant’s dismissal procedurally unfair.

(b) Victimisation

(1) Did the claimant’s dismissal by the first respondent amount to victimisation by the respondents and each of them because he had done a protected act under Article 4(2)(a)(i) of the Race Relations (NI) Order 1997, namely that he previously brought proceedings under that Order against the respondents?

(2) Was the claimant dismissed for a reason under Article 134A of the 1996 Order, namely that he had made a qualifying disclosure relating to the first respondent for the purposes of Article 67B, and what is the relevant failure under the Public Interest Disclosure (Northern Ireland) Order 1998 upon which the claimant relies?

(3) If the claimant’s claims are upheld what compensation is he entitled to in respect of each claim?

(4) In respect of the claimant’s claim of unfair dismissal have steps been taken to mitigate his loss?

(2) Main Factual Issues

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

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

Findings of Fact

4. (1) The first respondent employed the claimant from 11 October 2004 until 19 April 2012 when it dismissed him for misconduct.

(2) The second and third respondents are members of the board of management of the first named respondent.

(3) The claimant was chief executive of the first named respondent and he received per week £750 gross, £525 net and a weekly pension contribution of £45.92 giving him a net weekly income of £570.92. He lives 4½ miles outside Cookstown.

(4) The first named respondent runs a hostel in Cookstown. It specialises in providing residential accommodation to high risk offenders, including individuals with mental health issues, substance abuse issues, learning difficulties, and who are homeless. The clientele is made up of 16 males and four females.

(5) The claimant had previously brought a claim for race discrimination against the first respondent, following comments allegedly made about him in relation to his nationality, the claimant being an Englishman. However he subsequently withdrew that claim. However he relies on that as the protected act in relation to his claim for victimisation.

(6) The claimant also was responsible for additional schemes run by the first respondent and he had responsibility for 25 employees in addition to the residents.

(7) On 26 November 2010 the third respondent interviewed Eithne Ryan, arising from a complaint made on her behalf by Emma Morgan on 25 November 2010, during which she alleged that she had been put in fear by reason of the claimant’s attitude towards her in the preparation of a report and the preparation of an application for fundraising for the first respondent.

(8) On 30 November 2010 the second and third respondents interviewed seven other members of staff in connection with the allegations made by Miss Ryan. On foot of the interviews they formed the view that staff members had concerns about the claimant’s alleged abusive and intimidatory manner towards them.

(9) The second and third respondents met with the claimant on 3 December 2010. They indicated to him that, arising from the difficulties with Eithne Ryan, it would be best for him to take four weeks’ paid leave. It was made clear to him that he should not attend at the hostel during the four weeks’ leave apart from a carol service at Christmas.

(10) The claimant regards this as a suspension. The respondents deny that the claimant was suspended. The tribunal accepts that this was compulsory paid leave and is not persuaded that this amounted to a suspension, in the sense of something that was ancillary to or preparatory to an investigation in relation to disciplinary issues. The tribunal is satisfied that the second and third respondents were keen to give the claimant some time away from the workplace so that he could avail of counselling that they proposed that he should consider and which they were willing to arrange for him.

(11) The claimant was not happy with this arrangement and indicated his dissatisfaction to the respondents in an email of 9 December 2010.

(12) The claimant returned to work on 4 January 2011. The respondents had arranged for the attendance at the hostel, on that day, of Mr McCanny, an occupational psychologist.

(13) The claimant, although unaware of this arranged meeting with Mr McCanny, met and agreed a plan of action with him. He subsequently attended his GP who prescribed medication to him in connection with his frustration. The claimant advised the respondents of the medication, prescribed for him by his GP, on 6 January 2011 and that his doctor had diagnosed him as suffering from “anxiety and tension deficit disorder”.

(14) By email of 10 January 2011 the claimant notified the respondents that a number of members of staff, Nick Cassidy, Emma Morgan and Eithne Ryan had lied to the board and were trying to discredit him. The claimant did not receive any response from this email nor was the matter raised at the board meeting on 11 January 2011.

(15) A meeting was held on 12 January 2011 with some staff members and the claimant. At that meeting staff members did not raise any difficulties in relation to the claimant’s management style.

(16) The claimant contacted the respondents by email, on 13 January 2011, seeking guidance as to his role in view of the creation of a staff sub-committee. He did not receive a formal response to that email.

(17) On 14 January 2011 the staff sub-committee met. In attendance were the claimant and a number of staff members. At that meeting the purpose of the staff sub-committee was clarified and agreement was obtained for the creation of the post of deputy or assistant manager to assist the claimant and limit his direct contact with staff.

(18) On 20 January 2011 the hostel was subjected to an unannounced inspection by Criminal Justices Inspection Northern Ireland. In their report they commented, “MUST was operating very well at the time of the unannounced inspection. The atmosphere was positive and relaxed, yet both staff and residents clearly recognised the primacy of it’s public protections function”.

(19) On 2 February 2011 a staff meeting was held, attended by some staff members, the claimant and some board members. The atmosphere at the meeting was very poor and the meeting broke up with staff wishing to speak to the board members thereafter.

(20) On 7 February 2011 the claimant sent an email to the third respondent in which he claimed that he was being undermined in his management of the staff team and further alleged that the second respondent was encouraging staff to find fault with him and bring these issues to him and that these matters were adding to his workload and stress and breaching, in his view, his terms and conditions of employment. On the same day he also wrote an email to the third respondent in which he stated:-

“Can we set up a meeting asap regarding Derek Short’s working practices and his financial abuse of the MUST funds. I feel that the current bad practices of how funds are being used puts me in a compromising position and could result in legal action being taken. I look forward from hearing from you.”

(21) On 8 February 2011 the claimant sent an email to the second and third respondents outlining the issues that he had with a number of staff members.

(22) He followed this up on 9 February 2011 with a further email to the third respondent in which he enclosed a copy of minutes which he believed set out how he was seeking to address good working practices with staff.

(23) The first respondent did not reply to the claimant’s email of 7 February 2011 in which he alleged financial irregularities. However an emergency board meeting was held on 7 February 2011 to discuss the ongoing issues with the claimant. The claimant’s allegation of financial irregularities was not raised. The board instructed the second and third respondents to meet with the claimant and try to find a solution to his attitude and approach.

(24) A number of grievances was then lodged between the 8 and 10 February 2011. On 8 February Nicholas Cassidy complained about the claimant’s behaviour. On 9 February Emma Morgan similarly complained and on 10 February complaints were received from Ciara Bradley and Emma Morgan.

(25) On 11 February 2011 a meeting was convened involving four members of staff and four members of the board. The claimant was not invited to this meeting. The meeting took the form of a general discussion about the claimant in his absence. A number of the staff present made criticisms of the claimant.

(26) The board members present were of the opinion that they had no option but to suspend the claimant on full pay pending an investigation of the allegations and grievances about the claimant.

(27) The second and third respondents, who acted on behalf of the board, met with the claimant later on 11 February 2011 and explained to him that due to the gravity and number of the complaints that the board had no option but to suspend him on full pay pending the full investigation of the allegations made which, they stated, if proven amounted to systematic abuse of managerial authority and manipulation of his position to abuse staff and cause distress. The claimant left the meeting at that stage. The second respondent became acting manager of the first respondent hostel.

(28) On 19 February 2011 the claimant sent an email to the respondents seeking full details regarding his suspension. The claimant did not attend a meeting proposed by the respondents for 14 February 2011 to discuss these matters and he received the formal notification of his suspension and the reasons for it by letter of 21 February 2011 ie that a number of written grievances had been received from staff and he was suspended to protect him and the board. He was also advised that an investigatory committee had been established to fully investigate this matter and that he would be interviewed in due course and provided with copies of the written grievances as part of the process.

(29) By letter of 10 March 2011 to Mr Chris Symington, a board member, the claimant lodged a formal grievance against the second and third respondents on the grounds that; they had breached his contract; there was a breach of trust; they had failed to exercise their duty of care and; they had caused him stress. The letter also refers to the claimant’s allegations of fraud and fraudulent claims against the second respondent, i.e., that for six years he had claimed and received monies to which he was not entitled. The claimant relies on this letter as a second instance of him making a public interest disclosure.

(30) Arising from the claimant’s grievance the respondents decided to suspend the investigation into the claimant’s behaviour in relation to staff until his grievance had been addressed.

(31) On 16 June 2011 the claimant lodged claims against the respondents that he had suffered discrimination, inter alia, on the ground of race. He subsequently withdrew the claims because of the ill-health of the second respondent.

(32) The respondents investigated the claimant’s grievance and he was notified by letter of 21 July 2011 that his grievance had not been upheld in any respect. The claimant had lodged a subsequent grievance on 20 July 2011 complaining that the first grievance had not been dealt with in a more expeditious fashion. The grievance panel dealt with that in its decision of 21 July and rejected that grievance as well. The claimant was informed of his right of appeal which he exercised on 28 July 2011.

(33) The appeal panel, having considered the representations made by the claimant, decided to uphold the decision of the grievance panel and dismissed his appeal and the claimant was notified of this by letter of 9 December 2011.

(34) The claimant, by letter of 22 December 2011 to the Chief Executive of the Cookstown District Council, made a number of complaints and allegations about the respondents and how they conducted their business both in their own employment and in relation to the first respondent. The claimant is not relying on this letter as constituting part of his public interest disclosure.

(35) Once the claimant’s grievance had been disposed of the focus then moved to dealing with the allegations against the claimant. The claimant received formal notification of this by letter of 5 January 2012.

(36) On 9 February 2012 a meeting was convened, chaired by Marissa Canavan, on behalf of the first respondent, to gather facts in relation to the allegations against the claimant. The first respondent stated that if the matters were to proceed to a disciplinary meeting the claimant would be so advised. The claimant was in attendance as was his representative.

(37) The chairman, Marissa Canavan, indicated that there were ten grievances together with details of the meeting of 11 February 2011 which were the subject of the fact-finding exercise. During the meeting, however, details of only nine of the grievances were made available to the claimant.

(38) The claimant was invited to make his submissions in relation to all of the allegations that were tabled against him. Subsequent to the meeting the first respondent prepared a minute of it as did the claimant. The claimant forwarded his minute which contained details that apparently were not within the first respondent’s minute, as he had covertly recorded the meeting. The respondents included his minute of the meeting in the documents of record.

(39) At the end of the fact-finding meeting it was agreed that a further meeting would take place which would be the investigatory meeting.

(40) However a further investigatory meeting did not take place as the fact-finding panel was convinced that there was a case to answer and referred the matter to a disciplinary panel.

(41) By letter of 8 March 2012 Mr Derek Duncan, chairman of the disciplinary panel, notified the claimant that a disciplinary meeting would be held at a date to be agreed. The claimant was advised as follows:-

“As you are aware allegations have been made against you and an investigation process was carried out. The allegations were that you bullied and harassed for a sustained period of time, various staff members. It is believed that these actions may amount to:

· A serious breach of the disciplinary policy.”

The letter also enclosed minutes of the meeting of 11 February 2011, copies of grievances, witness statements and interview notes and minutes relevant to the matter. The information provided to the claimant did not identify specifically those matters which the first respondent relied on in support of the allegations of bullying and harassing of staff members.

The claimant was also informed that if the allegations made were upheld it would constitute gross misconduct and could lead to his summary dismissal.

(42) The disciplinary hearing was held on 11 April 2012 and was chaired by Mr Derek Duncan. At the disciplinary hearing the claimant was accompanied by his trade union representative Mr H Hutchinson. The claimant made a number of submissions, both oral and in writing, in relation to the complaints, grievances and charge which were being levelled against him.

(43) The first respondent, in support of the contention that the claimant had committed acts of gross misconduct, relied on grievances contained in statements made by Emma Morgan, Eithne Ryan, Ciara Bradley, Nick Cassidy and Cahill Kennedy, all of whom were members of staff. The respondents also relied on statements made by Shaun O’Neill, Jason Watley, Shirley Day who were other members of staff or had been members of staff and from residents William Burnside, William Madine and Daniel O’Connell.

The first respondent made no effort to identify which particular grievances, of any of the persons who made statements, it was alleging constituted acts of bullying or harassment against members of staff.

It seemed to the tribunal that there were in excess of 28 complaints contained within these statements. There were five complaints that clearly were of a bullying and harassment nature. There were five complaints that alleged bullying and harassment but without any specific details of what constituted the alleged bullying and harassment. There were 10 complaints that could be instances of bullying or harassment but could equally well be explained innocently. Eight of the complaints had nothing to do with bullying and harassment. Apart from the 28 complaints there were a number of the other complaints related to grievances by members of staff, former members of staff and residents which had nothing to do with bullying and harassment.

(44) All the statements and grievances were obtained prior to the 11 April 2012. At the hearing on 11 April 2012 the claimant denied the allegations against him, challenged the factual accuracy of many of them, proposed matters, which if true, undermine many of the grievances and suggested alternative reasons why some of the grievances were made. Although Mr Duncan declared at the end of the disciplinary hearing, as recorded in the minute of it, that he would have to look further at some of the matters raised by the claimant he did not provide any evidence to the tribunal of having done so.

(45) The disciplinary panel stated in its letter of 19 April 2012 to the claimant:-

“The disciplinary panel heard all of your submissions and has also considered the documents previously provided and also those provided since. The panel has concluded that the grievances submitted to the hostel had not been adequately explained or properly refuted by you and the panel therefore finds that your actions as Chief Executive, constitute gross misconduct for the bullying and harassment over a sustained period of time various members of staff at the hostel per section C of our Disciplinary procedures, a copy of which is enclosed”.

The letter then notified the claimant that he was summarily dismissed without notice. He was provided with a minute of the meeting and was informed of his right of appeal.

The disciplinary panel’s decision-letter of dismissal of 19 April 2012 does not indicate which allegations of bullying and harassment it accepted or rejected or what allegations it considered to amount to bullying and harassment or which members of staff he had bullied or harassed or how it had dealt with the claimant’s counter suggestions nor why it preferred one version of events to the other.

(46) By letter of 20 April 2012 the claimant appealed against his dismissal.

(47) By letter of 26 April 2012 the claimant wrote to Mr Duncan outlining a number of concerns and criticisms he had of the disciplinary meeting and how it was conducted and the attitude adopted by some members of the panel.

The first respondent treated the letter of 26 April as a grievance and indicated that it would be dealt with at the conclusion of his appeal.

(48) The claimant’s appeal hearing convened on 27 April 2012. In attendance were Chris Symington, the Chairman, John Devlin, Marion Dorman, minute taker, the claimant and Harry Hutchinson, his union representative. The meeting adjourned after a short while after a dispute between the claimant and Mr Symington over whether the claimant could record the proceedings as he asserted the minutes of the disciplinary meeting were incomplete and omitted evidence he believed that demonstrated his innocence.

(49) By letter of 28 April 2012 the claimant’s union representative also wrote to the Chairman of the disciplinary panel expressing his concern as to how the disciplinary meeting was conducted, the partiality of those conducting the meeting and the accuracy of the minutes.

Mr Hutchinson wrote again on 28 April 2012 to Mr Duncan, the Chairman of the disciplinary panel, and enclosed a copy of his notes of the meeting which, he asserted, was a more honest and detailed account of the meeting.

(50) By letter of 15 May 2012 the claimant set out the grounds of his appeal to Mr Symington. His grounds were:-

(a) M.U.S.T. policies and practices have not been followed or adhered to throughout the disciplinary process;

(b) my employer has failed to carry out a proper and reasonable investigation;

(d) the disciplinary panel considered matters which were irrelevant and outside the remit of the investigation or disciplinary process;

(e) the findings of fact of the disciplinary panel were incorrect and based on evidence which was, at best, unreliable;

(f) documentation and information relevant to the investigation and disciplinary process were withheld; and

(g) the decision to dismiss me was unfair, illegal and discriminatory.

(51) The first respondent notified the claimant that his re-convened disciplinary appeal hearing would take place on Friday 18 May 2012 at the Royal Hotel, Cookstown. The claimant, by letter of the same date, re-submitted his seven grounds of appeal.

(52) The re-convened appeal hearing took place on Friday 18 May 2012 at the Royal Hotel, Cookstown. The appeal panel was chaired by Mr Chris Symington and Marion Dorman, another MUST board member, was also in attendance. Mr Jim Eastwood attended as an independent minute taker. The claimant attended, accompanied by his union representative Mr Harry Hutchinson. At the appeal hearing the claimant was able to set out his criticisms of the disciplinary hearing and the deficiencies that he alleged in the whole process. He was also permitted to deliver a prepared statement to the meeting.

(53) On 23 May 2012 Mr Symington sent copies of the minutes of the appeal hearing to Marissa Canavan and Derek Duncan. He asked Ms Canavan to look at the claimant’s comments, as recorded in the minutes about the fact finding meeting, which he had highlighted in red ink and to comment on them in writing to allow the panel to come to a decision. He also invited Mr Duncan to comment in writing on the claimant’s criticisms of the disciplinary hearing as contained in the minutes of the appeal meeting. Mr Symington told the tribunal that he found the comments of Mr Duncan and Ms Canavan helpful. Both Ms Canavan and Mr Duncan in their comments simply rejected or denied the claimant’s criticisms without explanation.

Mr Symington did not tell the claimant that he had taken these steps nor provide the claimant with a copy of his questions nor a copy of the responses from Mr Duncan and Ms Canavan so that the claimant would have the opportunity to comment.

(54) The claimant’s appeal was rejected and the appeal panel set out in a letter of 30 May 2012 a detailed account of the allegations made by the claimant and the conclusions of the appeal tribunal. The appeal panel failed to deal with any of the alleged deficiencies in the disciplinary hearing outlined above. Like the disciplinary panel they failed to explain how they dealt with the conflicting evidence and why they preferred the accounts critical of the claimant to the claimant’s account in the absence of carrying out any investigation of these matters.

(55) The tribunal is satisfied that the claimant has made some efforts to find other employment since his dismissal. He has not applied for any job since November 2012. He has satisfied the Social Security Agency up to 23 December 2012 that he was seeking employment. His efforts have been made more difficult because of where he lives and the scarcity of employment in mid-Ulster by reason of the economic climate.

(56) On 1 January 2013 the claimant suffered a second epileptic seizure. Dr Raeburn Forbes, Consultant Neurologist records in a medical report, of 2 May 2013, that stress has been a potential precipitant of the seizure events. However he does not elaborate or indicate the nature of the stress or the cause or causes of the stress. However he informed the claimant that he should refrain from driving until he has had one year seizure free. He also comments that the inability to drive will affect the claimant’s ability to find gainful employment.

The Law

5. (1) A protected disclosure means a qualifying disclosure as defined in Articles 67B or the Employment Rights (Northern Ireland) Order 1996 (Article 67A the Employment Rights (Northern Ireland) Order 1996).

(2) A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one of the following:-

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

(d) that the health or safety of any individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be endangered, or

(f) that information tending to show any matter falling within any of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed. (Article 67B the Employment Rights (Northern Ireland) Order 1996).

(3) It is necessary that the worker making the disclosure has a reasonable belief that the disclosure tends to show one of the statutory categories of failure as set out at 5(2) above. It is not necessary for the information itself to be actually true. A disclosure may nevertheless be a qualified disclosure even if it subsequently transpires that the information disclosed was incorrect. (Darnton v University of Surry [2003] IRLR 133 EAT). The EAT confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations. Although it was recognised that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief, the assessment of the individual’s state of mind must be based upon the facts as understood by him at the time. (Harvey on Industrial Relations and Employment Law C111 [6]).

(4) The statutory test is a subjective one. This is because the Employment Rights Order states that there must be a reasonable belief on the part of the worker making the disclosure. It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker would have held such a reasonable belief. (Harvey on Industrial Relations and Employment Law C111 [7]).

(5) However the general thrust of the legislation is for a very broad range of information to be capable of amounting to a qualifying disclosure. The general requirement is that the disclosure must be of information and that a mere allegation against the employer or a simple expression of dissatisfaction by the employee will not suffice. (Cavendish Munroe Professional Risks Management Limited v Geduld [2011] IRLR 38 EAT; Goode v Marks and Spencer PLC UK EAT/00442/09, [2010] ALL England (D) 63; and Smith v London Metropolitan University [2011] IRLR 884 EAT. (Harvey on Industrial Relations and Employment C111 [11]).

(6) Under Article 67B of the Employment Rights (Northern Ireland) Order 1996 the term ‘likely’ requires more than a possibility or risk that the employer might fail to comply with a relevant legal obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation (Kraus v Penna PLC [2004] IRLR 260, EAT).

(7) In respect to each manner of disclosure sanctioned by the legislation it is necessary for the disclosure to be made in good faith. In this context the term good faith requires consideration of the motive of the worker. This is in line with the fact that the purpose of the legislation is not to allow people to advance personal grudges, but to protect those who make certain disclosures of information in the public interest. Accordingly, where a disclosure is made because of a personal grudge it will not be protected under the legislation even where the information disclosed is true and would otherwise qualify for protection (Street v Derbyshire Unemployed Worker’s Centre [2004] IRLR 687). (Harvey on Industrial Relations and Employment Law C111 [15]).

(8) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure (Article 70B of the Employment Rights (Northern Ireland) Order 1996).

(9) An employee who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one reason, the principle reason for the dismissal is that the employee made a protected disclosure (Article 134A of the Employment Rights (Northern Ireland) Order 1996).

(10) Where the worker has suffered a detriment it is still necessary to establish that the detriment arises from an act, or a deliberate failure to act, by the employer (Harvey on Industrial Relations and Employment Law D11 [93]).

(11) The act or deliberate failure to act of the employer must be done on the ground that the worker in question has made a protected disclosure. This requires an analysis of the mental process (conscious or unconscious) which caused the employer so to act and the test is not satisfied by the simple application of a ‘but for’ test (Harrow London Borough v Knight [2003] IRLR 140). The employer must prove, on the balance of probabilities, that the act, or deliberate failure to act, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower (NHS Manchester v Fecitt [2012] IRLR 64, CA) (Harvey on Industrial Relations and Employment Law D11 [95]).

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

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

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

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

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

(17) In certain circumstances, an otherwise unfair dismissal may be rendered fair if the unfairness is merely procedural and the employer can show that the decision would have been the same even had fair procedures been adopted (the Employment Rights (Northern Ireland) Order 1996 Article 130(2)).

(18) When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer (Harvey on Industrial Relations and Employment Law D1 paragraph [1534]).

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

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

Later it added:-

“26 … The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.”

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

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

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

(21) In Roldan Elias J stated at page 724, paragraph 13;-

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

He further observed, at page 729 paragraph 73;-

“The second part raised by this appeal concerns the approach of employers to allegations of misconduct where … the evidence consists of diametrically conflicting accounts on an alleged incidence with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred …”

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

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

He later added at paragraph 19:-

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

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

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

(24) A person, A, discriminates against another person, B, in any circumstances relevant for the purposes of any provision of this order if he treats B less favourable than he treats or would treat other persons in those circumstances for the reason that B has brought proceedings against A or any other person under this Order. (Article 4(1) and (2) The Race Relations (Northern Ireland) Order 1997.

(25) The Court of Appeal set out the requirements, when framing charges in a disciplinary procedure, in Strouthos v London Underground Ltd [2004] IRLR 636.

Pill LJ stated at page 637, at paragraph 12:-

“It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge.”

He added at paragraph 38:-

“However, it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him”.

The learned judge continued at paragraph 39:-

“Counsel referred to Spink v Express Foods Ltd [1990] IRLR 320, the Employment Appeal Tribunal (Wood J, (President) presiding) said:

‘It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.’

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

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

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

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

6. Public Interest Disclosure

(1) The claimant alleges that he made a qualifying disclosure on two occasions, 7 February 2011 and 10 March 2011.

(2) Both disclosures were made to the first respondent and allege that the second respondent was guilty of financial irregularities.

(3) The claimant relies on Articles 67B(1)(a), (b) and (f) of the Employment Rights (Northern Ireland) Order 1996 to ground his claim that he made a protected disclosure.

(4) The tribunal is satisfied that the claimant had a reasonable belief that the disclosure tended to fall within one of the statutory categories of protected disclosure on which he relies.

(5) The tribunal is satisfied that the allegations made on 7 February 2011 and 10 March 2011 go beyond mere allegation and are information about alleged financial improprieties by the second respondent assisted at times by the third respondent.

(6) The tribunal finds, on balance, that the alleged disclosures therefore are capable of being protected disclosures for the purposes of the Employment Rights (Northern Ireland) Order 1996. It is not persuaded that they were made in good faith as the alleged financial irregularities had been ongoing for some six years. Therefore the alleged disclosures are not protected under the Employment Rights (Northern Ireland) Order.

(7) In addition the tribunal is not persuaded that the reason for the claimant’s dismissal was that he made a public interest disclosure. In arriving at that conclusion the tribunal had regard to the following matters:-

(a) By the time of the second public interest disclosure, on 10 March 2011, the claimant had already been suspended and an investigation was being arranged into the complaints of misconduct made against him. Therefore the disclosure cannot have been a reason for initiating the investigation or the complaints against the claimant.

(b) At the time of the first public interest disclosure, on 7 February 2011, the first respondent had already received a number of complaints about the claimant. Though at that time an investigatory process or a disciplinary process had not been arranged the public interest disclosure cannot have been the cause of the complaints being made.

(c) Whilst it is possible that, in the absence of the public interest disclosure, the complaints would not have proceeded in the way that they did or would have been rejected or dealt with in some other fashion apart from a disciplinary process, there was not any evidence before the tribunal to support that possibility. Accordingly the tribunal discounts that possibility.

(8) Accordingly the claimant’s dismissal was not by reason of him having made a public interest disclosure.

Unfair Dismissal

(9) The first respondent alleges that the reason for the claimant’s dismissal is that he was guilty of bullying and harassing other members of staff over a number of years.

(10) The tribunal is satisfied that such a reason relates to conduct and is therefore capable of falling within the statutory grounds that permit an employer to dismiss an employee fairly.

Investigation

(11) The tribunal is not persuaded that the investigatory process was fair. In so concluding the tribunal had regard to the following matters:-

(a) The first respondent did not make any attempt whatsoever to indicate to the claimant which of the many complaints made by staff against the claimant amounted to bullying and harassment.

(b) The information provided by the first respondent to the claimant contained allegations that related to bullying and harassment; allegations which could be instances of bullying and harassment but which could also relate to administrative decisions or prudential judgments made by the claimant; criticisms from residents of the hostel about treatment received by them which would clearly not be relevant to the charge as framed; and matters that could amount to, what might be described as, the natural whinging by staff members about their manager.

(c) The panel, though constituted as a fact-finding body, did not make any findings of fact. It seems to have merely accepted every complaint as being true.

(d) Nor did the first respondent appear to engage in any evaluation as to the quality of the information in support of any of the allegations.

The Disciplinary Process

(12) The tribunal is not persuaded that the disciplinary hearing was fair. It also was flawed in a number of respects:-

(a) The first respondent failed to satisfy the basic proposition that the charge against an employee facing dismissal should be precisely framed and that evidence should be confined to the particulars given in the charge.

(b) Nor was the claimant told the important parts of the evidence in support of the charge being made by the first respondent.

(c) The claimant, having given his response to the many complaints contained in the statements by a number of staff, raised matters, which if true, undermine the reliability or truthfulness of many of the allegations made against him. However the disciplinary panel, having concluded its investigations prior to the date of the disciplinary hearing on 11 April 2012, failed to make any further enquiries or investigations about the matters raised by the claimant.

(d) The disciplinary panel in its decision gave no indication as to why it preferred the accounts of those making the allegations to that of the claimant, or on what pieces of evidence it relied on or what evidence it rejected or what complaints amounted to bullying and harassment of staff over a number of years, or which staff members suffered the bullying or harassment especially as it was faced with allegations and denials.

The Appeal Process

(13) The tribunal finds that the appeal process was also flawed in a number of respects:-

(a) It did not cure the defects of the disciplinary hearing.

(b) The chairman of the appeal panel, Chris Symington, sent a number of questions to the chairman of the investigatory panel, Marissa Canavan and the chairman of the disciplinary panel, Derek Duncan. The questions sought to elicit their respective responses to the criticisms of the investigation and the disciplinary hearing made by the claimant. Neither Ms Canavan nor Mr Duncan accepted any of the criticisms. However, there was not any explanation as to why that was the case.

(c) Mr Symington did not provide the claimant with a copy of the questions asked by him of Ms Canavan and Mr Duncan, nor their responses, nor did he offer the claimant an opportunity to comment on the questions and responses nor even tell him of their existence.

(d) Apart from the questions to Ms Canavan and Mr Duncan, the appeal panel did not conduct any investigation in relation to the assertions made by the claimant which, if true, could have undermined many of the allegations against him.

(e) Like the disciplinary hearing the appeal panel rejected each of the claimant’s contentions but gave no indication of the basis for those rejections, nor, if they preferred the evidence of those making allegations, what persuaded them when the appeal panel, like the disciplinary panel, was faced with claim and denial.

(f) Similar to what happened at the disciplinary hearing the claimant rejected a number of the assertions made by those giving evidence against him. Many of the claimant’s contentions seemed, to the tribunal, to have been capable of being objectively tested and that would have given assistance in determining the validity or otherwise of the claim or denial. No such effort was made to do this.

(14) The tribunal is therefore not satisfied that the decision to find the claimant guilty of gross misconduct was justified in the light of the flaws and deficiencies set out above.

The Sanction

(15) In the light of the flaws and deficiencies set out above the tribunal is of the view that the decision to dismiss was not within the range of reasonable responses.

(16) The tribunal is satisfied that the claimant was unfairly dismissed.

The Remedy

(17) The tribunal is satisfied that the claimant has mitigated his loss until 31 December 2012. From 1 January 2013 the claimant’s ability to seek other employment was rendered effectively impossible because of his inability to drive. His inability to drive directly resulted from his medical condition of having suffered two seizures between November 2012 and January 2013. There was no medical evidence before the tribunal which indicated that the seizures were caused or contributed to by how the claimant was treated by the respondents. The medical evidence at its height posed the possibility of stress being a potential precipitant of the seizure.

Therefore the first respondent cannot be blamed from 1 January 2013 for the claimant’s inability to obtain other work. Rather his inability to obtain work derives from his medical condition and therefore not from his treatment by the respondents. As a consequence the claimant is not entitled to any loss of earnings from 1 January 2013.

(18) The tribunal is satisfied that there was an element of contributory fault on the part of the claimant which the tribunal measures at 10%. The contributory fault relates to his making of a “public interest disclosure” which not only delayed the disciplinary process but no doubt made the atmosphere in which it was conducted even more difficult. He continued his attempt to embarrass the respondents with his letter of 22 December 2011 to the Chief Executive of Cookstown District Council where he reported his allegations of impropriety.

(19) The claimant therefore is entitled to an award of compensation for unfair dismissal as set out below:-

Basic Award: £430.00 x 10.5 = £4,515.00 – 10%	=	£4,063.50

Compensatory Award: 20 April 2012 to 31 December 2012 £570.92 x 36.6 = £20,895.67 – 10%	=	£18,806.10



Loss of Statutory Rights:	=	£250.00


Total compensation	=	23,119.60

Prescribed period is from 20 April 2012 to 31 December 2012.

Prescribed amount is £4,313.50 (£23,119.60 - £18,806.10)

Victimisation

(20) The tribunal is not persuaded that the claimant’s dismissal was by reason of victimisation because he had previously brought a claim of race discrimination against the respondents. By the time that the claimant brought his claim for discrimination on 16 June 2011 the disciplinary process, that ultimately led to his dismissal, was already underway.

(21) In addition the tribunal knew very little about the race discrimination allegations nor was there any evidence adduced before the tribunal that linked the disciplinary process that was underway to the claimant’s allegations of race discrimination or to his having brought a previous race discrimination claim.

(22) As the claimant has succeeded with his unfair dismissal claim, that claim is against his employer only. Accordingly the claims against the second and third respondents are dismissed in their entirety. The unfair dismissal finding is made against the first-named respondent.

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

Chairman:

Date and place of hearing: 22, 23, 24, 25 and 26 April and 24 May 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Warner v Mid Ulster and South Tyrone As... Derek Short Ivor Paisley [2013] NIIT 01399_12IT (02 October 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1399_12IT.html Cite as: [2013] NIIT 1399_12IT, [2013] NIIT 01399_12IT

Industrial Tribunals Northern Ireland Decisions