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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Chibanda v Regus Management (UK) Ltd [2017] NIIT 01213_16IT (19 January 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01213_16IT.html Cite as: [2017] NIIT 1213_16IT, [2017] NIIT 01213_16IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1213/16
CLAIMANT: Ivan Bindu Chibanda
RESPONDENT: Regus Management (UK) Ltd
DECISION
The unanimous decision of the tribunal is that the claims of:-
(i) unfair dismissal;
(ii) unlawful discrimination/detriment in relation to part-time working status or a flexible working application; and
(iii) breach of contract/unauthorised deduction from earnings;
are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Dr C Ackah
Mr I Atcheson
Appearances:
The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Jones Cassidy Brett, Solicitors.
The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Shoosmiths LLP, Solicitors.
Background
1. The claimant had been employed by the respondent from 28 May 2013 until he was summarily dismissed for gross misconduct on 25 January 2016.
2. The respondent is a company engaged in the provision of both meeting rooms which are generally booked by the day and with the provision of more long-term office facilities. It employs separate teams of staff in relation to those two areas of work.
3. The claimant was employed as a reservations representative in the team dealing with the provision of meeting rooms.
4. Following an investigation conducted by his line manager, Mr David O’Neill, and a disciplinary hearing conducted by Mr Phelim McGuinness, a charge of gross misconduct was upheld and the claimant was summarily dismissed.
5. The claimant did not lodge an internal appeal against that dismissal.
6. The claimant lodged a tribunal claim on 21 April 2016 just before the expiry of the statutory time-limit. The claimant alleged, firstly, that he had been unfairly dismissed. He also alleged that he had been unlawfully discriminated against in that dismissal because of both his part-time status and because he had applied for, and had been granted, flexible working. The claimant also alleged that he was due £500.00 under an incentive scheme as either a breach of contract or an unauthorised deduction of earnings.
Procedure
7. This case had been case-managed. Directions had been given in relation to the exchange of witness statements. At the hearing, those witness statements were sworn or affirmed. Each witness adopted their previously exchanged witness statement and, subject to any additional oral evidence-in-chief relating to additional discovery (see below), they moved immediately to cross-examination and brief re-examination.
8. Following the exchange of witness statements, the respondent sought to add additional discovery relating to one particular disciplinary issue. Those documents were not agreed by the claimant. Following discussion, the tribunal ruled that the documents should be admitted. It would not have been in accordance with the overriding objective to exclude documents which might have been potentially relevant and which had been disclosed to the claimant long before the hearing. These documents, if not necessarily relevant to the claim of unfair dismissal, might have been relevant to the claim of unlawful discrimination and also to the general issue of credibility. The tribunal ruled that any witness (including the claimant) who wished to give additional evidence-in-chief in relation to that additional discovery would be permitted to do so. In reaching this conclusion, the tribunal also took into account that any further debate on this matter concerning the admissibility and/or the relevance of the additional documentation would take up a great deal of time and would further delay proceedings in a situation where no potential injustice or prejudice was apparent..
9. The claimant gave evidence on his own behalf. He called no other witnesses. The respondent called three witnesses. The first witness was Mr David O’Neill who had conducted the initial investigation. The second witness was Mr Phelim McGuinness who had conducted the disciplinary hearing and who had decided to dismiss the claimant. The third witness was Mr Kevin Scruby, a sales director, who gave evidence in relation to recruitment of staff.
10. The tribunal read the exchanged witness statements and, to the extent necessary, parts of the exchanged documentation before the hearing commenced. The tribunal sat on 9 – 10 January 2017 to hear the evidence. It heard submissions on 11 January 2017. Following those submissions the tribunal met to consider the evidence and the submissions and to reach a decision. This document is that decision.
Relevant law
Unfair dismissal
11. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
12. 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.”
13. The Court of Appeal in Rogan 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.”
14. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal 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.”
15. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal 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.”
16. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which 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.”
17. It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear 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: ie 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; not whether the tribunal would have reached the same decision on 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.
18. One of the relevant circumstances for determining fairness for the purpose of Article 130 may be consistency. It is clear that there cannot be a tariff system in disciplinary procedures and that this issue must be approached carefully by employers and by tribunals. That said, in Post Office v Fennell [1981] IRLR 221 the Court of Appeal (GB) said:-
“It seems to me that the expression ‘equity’ as there used [in the GB equivalent to Article 130] comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”
19. That decision refers to disciplinary action in the past. The importance of inconsistency is greater when the comparison is between two individuals who were complicit in broadly the same misconduct at the same time and where one received only a written warning and one is dismissed.
20. As indicated above, caution needs to be taken in relation to arguments on inconsistency. See Hadjioannou v Coral Casinos Ltd [1991] IRLR 352.
In Paul v East Surrey District Health Authority [1995] IRLR 305, the Court of Appeal (GB) considered an argument on inconsistency. In that case an employee had been dismissed after drinking on duty and becoming abusive. He argued that others who had been drinking had not been treated in the same way. They had been given a formal warning or a reprimand. The Court stated:-
“I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of an Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd [1991] IRLR 352, when at Paragraph 25, he said:
‘We accept that analysis by counsel for the respondents of the potential relevance of the arguments based on disparity. We should add, however, as counsel as urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [Section 98(4) of the ERA]. The emphasise on that Section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt of rules of thumb, or codes, for dealing with industrial relations and in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.’
I would endorse the guidance that ultimately the question for the employer is whether in a particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider that whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.
An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits the conduct proved as unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely. I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would have not regarded the actions of the employer in Mrs Rice’s case as disparate or have said that Mr Verling’s misconduct should have been treated just as seriously, if not more seriously, than Mr Paul’s.”
Part-time Working
21. Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 provides:-
“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker —
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if —
(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds.”
Flexible Working
22. Article 135C of the 1996 Order provides that an employee has been automatically unfairly dismissed if the reason or the provisional reason for that dismissal is that he has applied for a contract variation in relation to flexible working.
Relevant findings of fact
23. The claimant commenced employment with the respondent on 28 May 2013. He was based, at all relevant times, in a call centre in Belfast. He was part of the meeting room team. He was one of approximately 10 reservations representatives. He dealt with reservations made by clients for meeting rooms in business centres located throughout the United Kingdom. He was part of the Inside Sales Team (‘IST’).
24. His immediate line manager was Mr David O’Neill who had been appointed to that position in 2015. At that stage, the claimant had been part of the meeting room team for approximately two years.
25. The claimant had applied for flexible working and had been granted flexible working on more than one occasion. Most recently, he had applied for permission to change his working pattern to working only on Monday to Thursday each week. This had been for family reasons. That application had been granted without dispute by Mr David O’Neill.
26. The claimant stated in evidence that Mr David O’Neill had granted him flexible working simply because his previous manager, Mr Jess, would have allowed flexible working and that it had not really been Mr David O’Neill’s decision. There was absolutely no evidence to support this proposition. It was clear from the documentation that Mr David O’Neill had met with the claimant to discuss his application for flexible working on 5 August 2015 and that he had subsequently written to him on 25 August 2015 granting that application. There is absolutely no evidence that Mr Jess had any particular input or that he had in any way determined the application. It is difficult to see why he would have done so since he was no longer, at that stage, the relevant line manager and would have had no interest whatsoever in this matter. Furthermore, the letter of 25 August 2015 stated that the change in working pattern had been approved an initial three month trial. It stated:-
“The purpose of the trial is to ensure that the new agreed working pattern works for both you and the company.”
There was no evidence that, at the end of that three month period, ie at the start of December 2015, there had been any difficulties in relation to the continuation of flexible working or that Mr David O’Neill had in any way raised any queries or objections to its continuance.
27. Mr David O’Neill and indeed Mr Phelim McGuinness both gave unrebutted evidence that they had encouraged part-time working and flexible working during their employment. There was absolutely no evidence that they had, at any stage, created any difficulties for either part-time workers or for workers on flexible working patterns.
28. The claimant alleged that remarks had been made in the course of employment about part-time workers. He had been very vague about those remarks in his witness statement and indeed in his cross-examination. They were not attributed to any one person in particular and no dates were given for these alleged remarks. Furthermore, there had been no contemporaneous complaints, even informal complaints, about the alleged remarks. The alleged remarks were not raised by the claimant either in the course of the investigation conducted by Mr David O’Neill or in the course of the disciplinary hearing conducted by Mr Phelim McGuinness. They appear to have surfaced for the first time in the claim form which was lodged some three months after the dismissal. If the alleged remarks had ever been made, it is surprising that the claimant did not raise these earlier. On 21 January 2016, the claimant commented on the notes of the investigation meeting. He was very critical of Mr David O’Neill and accused him of ‘fabrication’. If discriminatory remarks had been made, including by Mr David O’Neill, the claimant would have raised those remarks at this stage.
29. The claimant had been regarded by Mr David O’Neill as an experienced and valuable worker. He had ‘by and large’ met his targets. The claimant accepted in cross-examination that he had been experienced in his role and that he had had a good knowledge of the booking system. He accepted that he had assisted others in its operation; in particular, Ms Agnes Sowinska.
30. A bonus scheme was in operation for reservation representatives, such as the claimant. The contractual documentation made it plain that the scheme was discretionary. The scheme depended on targets and the meeting of those targets. Team targets were set by a director of the respondent organisation. More importantly, for the present case, individual monthly targets were set for each reservation representative by their line manager; in this case, by Mr David O’Neill.
31. The level of bonuses was tiered. It was a complicated system although the tribunal, having heard the evidence of all the parties, concludes that the scheme had been fully understood by the claimant. The respondent had been entitled to reach the same conclusion and did so. The lowest rate of bonus amounted to 25% of salary. That lowest level of bonus was triggered when the reservation representative had achieved 90% of the monthly individual target set by his line manager. The highest rate of bonus amounted to 45% of salary and was triggered when the reservation representative had achieved 110% of the individual monthly target set by his line manager. The bonus was paid to each reservation representative one month in arrears. The bonus earned in the month of February would therefore be paid at the end of March.
32. The level of bonus was an important component of any reservation representative’s earnings. The individual monthly target set by the line manager was therefore crucial to each reservation representative’s earnings. If the individual monthly target was too high, the bonus would therefore be lower and perhaps would even be non-existent if the reservation representative failed to achieve at least 90% of the target in that particular month.
33. When setting individual monthly targets for this purpose of this scheme, the line manager took into account provisional bookings recorded on the system (bookings which had not yet been paid for). Those were recorded in the Forward Order Book (‘FOB’). In essence, if there were provisional bookings already recorded in the FOB for a particular month, that would make the individual monthly target higher and therefore more difficult to achieve. It would therefore have been advantageous for a reservation representative to reduce or to minimise the amount of provisional bookings recorded in the FOB and therefore taken into account in setting an individual monthly target. The claimant accepted in cross-examination that this had been the case.
34. Apart from that particular issue, bookings which recorded more than one date were only taken into account in relation to the last date. In other words, if a booking covered multiple dates in both, say, February and July, the provisional booking would only be entered into the FOB for July and would therefore only increase the individual monthly target for the month of July and not for the month of February. The potential for earning bonus in February in that example would therefore be unaffected. The claimant had been, at all relevant times, aware of this fact. This fact opened the possibility of an additional date being added to a booking in February, eg giving an additional date of July, so that the individual monthly target for February would be reduced. Bonus earning potential in February would therefore be increased and the additional date in July could be cancelled before it ever took effect in relation to the individual monthly target in July.
35. The potential for manipulating the level of the individual monthly target by deleting or delaying the effect of provisional bookings is at the core of this case.
36. The booking system was known as ‘Titan’. The relevant software was known as ‘Pivotal’.
When a booking is made amended or deleted on the Titan system, confirmation e-mails are automatically generated and sent to:-
(1) the client;
(2) the reservation representative involved; and
(3) to a Centre Regus mailbox.
These automatic actions can be manually turned off by the reservation representative. However this requires positive action on that reservation representative’s part. This issue is important, because part of the alleged manipulation of actual or potential bonus earnings involved instances where the client who had, allegedly, for example, booked and then cancelled or amended that booking, had not been sent a confirmation e-mail for either the original alleged booking or for the subsequent alleged amendment or deletion.
37. The claimant had received on the job training following his appointment in relation to the booking system and in relation to the relevant computer systems operated by the respondent organisation. At no stage in his employment did the claimant ask for further training. At no stage in his employment did the claimant allege that he had been under-trained or that he was incompetent in the operation of the booking system or in the operation of the bonus scheme. He had been regarded as competent and experienced. He accepted that he had been competent and experienced. He assisted others in their work.
38. On 6 January 2016, Mr David O’Neill was alerted to potential irregularities in the claimant’s bookings and in his claims for bonus by Ms Rachel Lowther (the Head of Meeting Room Sales UK) and by Ms Kathryn McBurney, another reservation representative working in the Belfast Call Centre.
39. Ms Rachel Lowther and Ms Kathryn McBurney provided further details on 6, 7 and 8 January 2016 in relation to those potential irregularities. That information raised several matters of potential concern to the respondent.
40. Firstly, certain of the claimant’s provisional bookings appeared to relate to February 2016 but also contained a later date in July 2016. As explained above, this had the effect of delaying the increase in individual monthly target from February until July 2016, by which time the July booking 2016 could be deleted before it had any real effect.
41. Secondly, provisional bookings had been taken directly from clients in a business centre in London (Cannon Street). These provisional bookings had not been transferred by the claimant into his own name immediately on receipt of the bookings until the month in which the provisional booking took effect. That had the effect of avoiding any impact on the individual monthly target set for that month by his line manager.
42. Thirdly, in relation to provisional bookings taken in the London business centre, bookings were being cancelled in the month the room was required and then being re-booked under the claimant’s name. Again that would mean that the potential bonus earnings would be maximised.
43. Fourthly, it appeared that the claimant was making block bookings, ie listing several bookings together as one provisional booking, rather than as individual bookings. That had the effect that the only potential impact on monthly individual targets took place on the latest date rather than separately over several months.
44. Mr David O’Neill decided to investigate further. The claimant alleged that this decision had been motivated by a desire to ‘do him down’ because of his part-time worker’s status or because he had applied for flexible working. There appears to be absolutely no evidence to support this proposition. Mr David O’Neill could hardly have ignored these reports and thereby have ignored potential manipulation of the bonus scheme.
45. Mr David O’Neill raised his concerns with the claimant when he met him on 13 January 2016. Another manager, Ms Sharon Johnston, attended that meeting as a note taker. That meeting commenced at 13.38 hours and finished at 15.04 hours. While the typed notes taken by Ms Sharon Johnston were clearly not verbatim notes, they were very detailed and comprised six closely typed pages.
46. The claimant alleged that these typed minutes were largely inaccurate. Mr David O’Neill asserted that they were an accurate record of the meeting. Ms Sharon Johnston was not called by either side to give evidence. Having heard the evidence of both the claimant and that of Mr David O’Neill, the tribunal prefers the evidence of Mr David O’Neill. The tribunal can see no reason why both Mr David O’Neill and Ms Sharon Johnston would have falsified the notes or would have incorrectly recorded the notes in the way alleged by the claimant.
47. In particular, the claimant alleged that in the course of this investigation meeting, he had asked for access to the Titan system to prepare his defence. He did not allege to this tribunal that this request had been specifically refused by the respondent. He simply alleged that the request had been made but that no access had been provided. The typewritten notes record in some detail an exchange between Mr David O’Neill and the claimant, in which the claimant, in answer to a particular question, indicated that he would need to look ‘on Titan’. Mr David O’Neill confirmed that he had already checked Titan on this particular point and that there had been ‘nothing there’. The claimant is then recorded as agreeing that Mr David O’Neill had been thorough and that he could therefore offer no explanation at that time. There is no record in the notes of the claimant changing his mind after having agreed that a thorough check had already been made on this point. There is no record of a request for access to check this particular point later in the meeting or a request for access generally. The notes were sent to the claimant approximately one week later on 20 January 2016. In the interval between the meeting on 13 January 2016 and the notes being sent to him on 20 January 2016, the claimant did not ask at any stage for access to Titan. If, as he now alleges, he had made a request for access to Titan which, inexplicably, had not been acted upon, the tribunal would have expected him to have followed that up immediately, perhaps even that afternoon, with an indication that he was available to check that system. The tribunal accepts Mr David O’Neill’s clear evidence that no such request had been made in the course of the investigation meeting and that, if it had been made, the claimant would have been allowed access to Titan under supervision. The tribunal also accepts Mr David O’Neill’s unrebutted evidence that this had been allowed in the past in other cases.
Further, the claimant was unable to suggest any point in a Titan search or to any type of documentation which such a search might have disclosed which could have provided an explanation for his actions in this case. The most that counsel could suggest was that it might have ‘jogged his memory’.
48. Further, the claimant alleged that the typewritten notes had wrongly recorded that he had accepted that the process he had followed had not been the correct company sales process. Mr David O’Neill insisted that he had made this clear admission. For the claimant to have been correct in his assertion to the tribunal, Mr David O’Neill, abetted by Ms Sharon Johnston, would have had to have deliberately falsified the typewritten record of the meeting. There had been no real room for any legitimate misunderstanding of what the claimant is recorded as having said in this matter. Either the claimant had said that he accepted that what he had done had not followed the correct company sales process or he had not made that statement. The tribunal can see no reason why the statement would have been falsified by Mr David O’Neill and by Ms Sharon Johnston. The evidence produced by the investigation at this stage was already enough to raise serious concerns about the claimant’s behaviour. Falsifying records at this early stage (or at all) would have made no sense. It is much more likely that the remark had been made as recorded and that, on further reflection, the claimant had decided that what he had said had gone too far and he wished to resile from that statement.
49. This meeting on 13 January 2016 was the first occasion when the claimant had been told of these allegations. However, since this was at the investigation stage and no disciplinary charges had been laid at this stage, it cannot be said that a respondent was required to give prior detailed notification when seeking the claimant’s initial reactions and his initial explanations in relation to the concerns raised by his colleagues, to see whether disciplinary action was required.
50. Mr David O’Neill went through each of his then concerns in turn. He raised, first of all, a matter referred to as ‘Exhibit A’. This was a booking in a London business centre by Trade Skills 4U which had originally been made in September 2015 and which referred to dates in January 2016. It totalled a value of £7,180.00. This booking had been cancelled, re-booked and confirmed by the claimant. Mr David O’Neill pointed out that the rooms had been held since September 2015 and had only been moved into the claimant’s name in the month of the actual event. Mr David O’Neill stated that the claimant was doing this to deliberately affect his monthly target. The claimant stated he had not been aware of this booking until 5 January 2016 when he had been contacted by Ms Agnes Sowinska of the London business centre to confirm the booking.
51. The next issue raised by Mr David O’Neill was known as ‘Exhibit B’. This referred to bookings which had been provisionally held by Ms Agnes Sowinska and which were confirmed by the claimant only in the month which directly benefited him. The claimant claimed that this was not ‘against process’. Mr David O’Neill asked the claimant who had been provisionally holding the rooms and the claimant stated that Ms Agnes Sowinska had been doing so.
52. The next issue raised by Mr David O’Neill was known as ‘Exhibit C’. That concerned bookings where an additional date of 4 July 2016 had been added to the booking. The claimant stated he did not know why that random date had been included even though he had booked it. When asked why he had not queried why the 4th of July 2016 had been added to a booking in February, the claimant stated that his reason for doing so was ‘because the client had historically dates all over the place’. Mr David O’Neill stated that this had not been the case, that the vast majority of the bookings had been for the same date in the month.
53. Mr David O’Neill then raised a matter known as ‘Exhibit D’. In that instance bookings had been made at 10.59 am for 24 February 2016. The claimant had amended the booking at 14.06 pm with the only difference being an additional date being added for 4 July 2016. Mr David O’Neill stated that he believed the claimant had done this with the intention of ultimately deleting the amended date of 4 July 2016 from the provisional booking to maximise bonus entitlement. The claimant stated that ‘it looks like that’. Mr David O’Neill asked the claimant if he could give another reason why it was booked in this manner and the claimant stated that ‘he couldn’t’.
54. The next matter raised by Mr David O’Neill was known as ‘Exhibit F’. This concerned provisional bookings with an additional date where confirmation of the additional date had not been sent to the individual clients. The claimant stated that he could not answer and said he ‘understood how bad this looked to him, that he couldn’t offer an explanation as to why amendments were not sent to the client’.
55. The next matter raised by Mr David O’Neill was known as ‘Exhibit G’. That concerned a provisional booking which had been held by business centre staff since July 2015 and which had then been both cancelled and confirmed on 7 January 2016 by the claimant to take effect in that month.
56. The next matter raised by Mr David O’Neill was known as ‘Exhibit H’. That showed a multiple booking done for Prudential on one booking. Mr David O’Neill stated that the claimant as an experienced reservation representative should have known that the booking should have been split into monthly bookings for invoice reasons and that by using a yearly booking he had postponed any effect on the forward order book and therefore reduced monthly targets until the final date in the year. The claimant stated this had been done for ease of use and not to manipulate his figures.
57. The claimant stated that he had not manipulated figures for financial benefit and that he never had the intention to gain financially.
58. Mr David O’Neill informed the claimant that he would be suspended with immediate effect.
59. On 14 January 2016, Mr David O’Neill met with the claimant’s previous line manager, Mr Jess. Ms Sharon Johnston attended as a note taker and prepared typed notes of the conversation. Mr David O’Neill raised the suggestion made by the claimant that Mr Jess had in fact authorised the claimant to delay moving a provisional booking, which had originally been taken by a business centre, into his own name until that booking had been confirmed. Such a delay would have allowed the claimant to manipulate his individual monthly target and thereby to maximise bonus entitlement. The client in the particular transaction which had been put to the claimant was Trade Skills 4U. Mr Jess denied that he had ever given the claimant any such authorisation. In fact, Mr Jess had specifically advised against this practice in another case involving a different client.
60. On 19 January 2016, Mr David O’Neill telephoned Ms Agnes Sowinska in the Cannon Street business centre. Ms Sharon Johnston again observed the telephone conversation as a note taker and prepared typed notes. Ms Agnes Sowinska stated that the claimant would be aware of provisional bookings. He had been in constant contact with the client, Trade Skills 4U, and with her in the business centre. Ms Agnes Sowinska stated that the claimant would always have advance notice of bookings. She was unaware that the reservation representative had to transfer the provisional booking into his own name as soon as he was notified. However, this was not her business area and Mr David O’Neill was not surprised that she did not know the detailed procedure required of others. Mr David O’Neill concluded that given the frequent and constant contact between the claimant and both the client and with Ms Agnes Sowinska, it had been highly improbable that the claimant had only found out about provisional bookings at the last minute. The tribunal accepts that this had been a reasonable conclusion.
61. On 19 January 2017, Mr David O’Neill spoke to Ms Rachel Lowther in relation to the suggestion that she had told the claimant to make several provisional bookings together in a yearly schedule. She confirmed that she did not do so. In a e-mail of that date she stated:-
“I started managing Ivan Chibanda on my return from maternity leave in November 2013. I was always very clear with the team that manipulation of bookings for personal gain was not acceptable. At no time did I tell Ivan to book a full year’s schedule under one booking reference, place a booking on Titan and send a copy of a provisional to the client, then go back to the booking and add an additional day/days that then moved the associated revenue to another month, place a multi-week booking (that has to be billed weekly) onto a single booking, and then cancel and re-book it in the month for the month so that additional revenue then falls into the current month’s figures.”
62. Mr David O’Neill checked the Titan records in relation to other members of his team and found nothing unusual. No evidence was presented to the tribunal of anything in relation to other members of staff, with the exception of the matter dealt with in the next paragraph.
63. Another reservation representative had separately notified the respondent of one instance of manipulating a bonus. That employee had received a Final Written Warning. The reason for that Final Written Warning as opposed to a dismissal, was that he had notified the respondent of his offence, he had admitted what had happened and the issue had related to a single offence.
64. All the papers were passed by Mr David O’Neill to Mr Phelim McGuinness for disciplinary action. Mr David O’Neill’s unrebutted evidence was that this had been a standard practice in the respondent organisation. He did not recommend specific charges or a particular course of action in relation to disciplinary action. That was left up to Mr Phelim McGuinness.
65. Mr Phelim McGuinness was a sales manager. He was at the same managerial level as Mr David O’Neill. However, he had more seniority. The unrebutted evidence of both Mr David O’Neill and Mr Phelim McGuinness was that Mr Phelim McGuinness had been regarded by the respondent organisation as the more senior manager of the two. Mr Phelim McGuinness dealt with office sales while Mr David O’Neill dealt with meeting room sales. Office sales were generally for longer periods and were at a higher value than meeting room sales which were generally one-off sales or sales for limited periods. Both Mr David O’Neill and Mr Phelim McGuinness reported to Mr Kevin Scruby, as sales director.
66. Mr Kevin Scruby asked Mr Phelim McGuinness to chair the disciplinary hearing in this matter. Mr Phelim McGuinness was given the notes of the investigation conducted by Mr David O’Neill. Those notes included the typed notes of the investigatory meeting with the claimant and the typed notes of the interviews with Mr Jess, Ms Agnes Sowinska and the reply from Ms Rachel Lowther.
67. The invitation to the disciplinary hearing stated that:-
“At this meeting we will discuss your recent performance with you, in accordance with the company’s disciplinary procedure, with particular focus on:
‘Alleged gross misconduct for failure to adhere to company sales process for the purposes of financial gain’.
As discussed in accordance with the disciplinary rules and procedures, I can confirm that you are suspended on full pay pending an investigation in the above allegations. This decision has been made, because of the nature of the allegations and the associated risks to the business. This suspension is in order us to conduct the investigation partially and fairly.”
The claimant was advised of his entitlement to be accompanied to the disciplinary interview and advised that he was at risk of dismissal.
68. On 20 January 2016, Mr Phelim McGuinness invited the claimant to a disciplinary hearing to be heard on 25 January 2016. The claimant responded with his comments on the notes of the investigation meeting, which are referred to above. The claimant did not ask Mr Phelim McGuinness for, or did not seek to make arrangements for, an opportunity to inspect the Titan system or indeed anything else
69. The disciplinary hearing was due to commence at 12.00 pm on 25 January 2016. Mr Phelim McGuinness started to prepare himself for the hearing that morning. He examined the exhibits. He noted that in relation to the provisional bookings originally taken by a member of staff in Cannon Street, bookings were being cancelled and then re-booked a few minutes later so that there had been no real risk that the room would have been lost during those few minutes, ie no real risk that the room would have been re-allocated and sold to another client. However, there seemed to be one exception to this practice. In relation to a booking for Trade Skills 4U, the booking had been cancelled on 20 October 2015 but had not been re-booked with Trade Skills 4U until 2 November 2015. The booking related to that month and this was consistent with the proposition that bonus was being maximised. However, it raised the possibility that the room might have been re-allocated to another client by a different reservation representative between 20 October 2015 and 2 November 2015. Mr Phelim McGuinness wondered why the claimant would have run that risk in these circumstances.
70. Mr Phelim McGuinness asked Ms Rachel Lowther to check the bookings in Cannon Street on Titan to see if the room had been held elsewhere during this period between 20 October 2015 and 2 November 2015. She checked the bookings on her laptop and located the booking as having been transferred to a company called Silverstreet BV. This booking was then cancelled before being re-booked on 2 November 2015 for Trade Skills 4U. This had been done by the claimant. Silverstreet BV had never been notified by the claimant of either the booking or the cancellation. The papers were printed and marked as Exhibit X for use in the disciplinary hearing.
71. Ms Sharon Johnston attended the hearing as a note taker and produced eight pages of typed notes. The claimant was represented by a colleague, Mr Anthony Murray. It is clear to the tribunal that Mr Phelim McGuinness conducted this meeting carefully. He went through each of the exhibits where the claimant’s conduct had raised concerns. It is also clear to the tribunal that Mr Phelim McGuinness had listened carefully to the claimant’s explanations and that he had indeed decided to accept those explanations in several instances. In the course of that meeting the claimant appeared to accept that removing a provisional booking from the FOB would benefit him, in that it would reduce the monthly target and make a bonus easier to achieve. However, he was remarkably reluctant to accept that proposition. When asked:-
“Does it benefit you financially?”
The claimant stated:-
“Well it looks that way.”
When asked the same question again and asked for a specific answer, he stated:-
“That depends.”
The question was asked again and his reply was:-
“Not if I don’t hit target.
The question was asked again, his reply was:-
“It contributes.”
72. Mr Phelim McGuinness went through each of the Exhibits A to I. Exhibits A and B (with one exception) related to bookings which had been cancelled by the claimant and re-booked. Although Mr Phelim McGuinness had suspicions that this had been done deliberately to reduce individual monthly targets and maximise bonus, he concluded that he was not entirely sure that the claimant had known about these bookings in advance. He therefore decided that the evidence had not been conclusive in relation to these matters. Charges were not upheld with that one exception, dealt with below.
73. However, Exhibit B included the particular incident which related to Exhibit X. That was the booking for Trade Skills 4U which had been cancelled and re-booked in the name of Silverstreet BV, cancelled for Silverstreet BV and re-booked in Trade Skills 4U. This had been done in relation to two bookings. The claimant had been unable to provide any explanation for this course of conduct. Before Exhibit X had been given to him, he had been asked:-
“Do you recognise a company called Silverstreet BV?”
His reply was:-
“No.”
When he had been presented with Exhibit X, which related to the booking in the name of Silverstreet BV and the cancellation of that booking, he stated:-
“I can’t think. Can’t remember doing this, I can’t. I can’t comment on this.”
74. Those matters related to two bookings where the original bookings were worth approximately £11,000.00. They were therefore substantial bookings for a regular client, ie Trade Skills 4U. The two bookings amounting to £11,000.00 had been cancelled by the claimant only some three months before the disciplinary meeting and re-booked with a company that he stated that he had never heard of for a total figure of £960.00. That would have amounted to a discount from the normal room rate of more than 90%. Mr Phelim McGuinness was entitled to conclude that it had been highly improbable that such a remarkable transaction had been forgotten by the claimant within three months. He was also entitled to conclude that this remarkable transaction would have only one rational explanation, ie that it had been done deliberately to maximise bonus revenue. It had been notable, and Mr Phelim McGuinness had been entitled to take this into account, that the automatic notification to Silverstreet BV of both the booking and its cancellation had been turned off.
75. When further questioned the claimant stated:-
“I cannot explain, I am stuck.”
He was allowed a break for a brief period to consider the matter. No explanation was then forthcoming.
76. The claimant has put forward an explanation in the tribunal that these transactions occurred because Trade Skills 4U had cancelled a course because of insufficient applicants and then, when further applicants appeared, had reinstated the booking. That is an explanation which has emerged after the dismissal. It therefore cannot be relevant to any claim of unfair dismissal. Furthermore, it is a remarkably unconvincing explanation. The disciplinary interview was some three months after the relevant events. It does not explain why Silverstreet BV were not notified of the booking and the cancellation. It does not explain why the booking for Silverstreet BV had been at such a remarkably low figure which could not have been justified in any rational way. In cross-examination the claimant suggested that Silverstreet BV had received discount as an in-house client. Firstly, if they had been an in-house client, it is remarkable that the claimant did not remember the name of the company in the disciplinary meeting. He had been in daily contact with that business centre. Furthermore, the unrebutted evidence from the respondent was that an in-house client would receive at most a 10% discount from the standard rate which, in these circumstances, would have amounted to £11,000.00. The increase to a discount in excess of 90% is and was inexplicable.
77. Exhibits C, D, E and F were examples of bookings where additional dates had been added and later cancelled after the month to which the original bookings had related. The claimant had been unable to offer any explanation for this consistent course of conduct. That course of conduct was consistent with a deliberate action to manipulate the bonus scheme, to maximise bonus entitlement. It was not consistent with any other rational explanation. Mr Phelim McGuinness had been entitled to conclude that the claimant had been deliberately manipulating the scheme to his own benefit. He concluded that this had been gross misconduct.
78. In the course of the tribunal hearing the claimant sought to argue that this in reality had been a training issue. However, the creation of additional dates which were not notified to the client and which were then cancelled can only reasonably be regarded as a deliberate manipulation of the bonus scheme. No training is required to indicate to employees that deliberate falsification of data to maximise bonus entitlement is a disciplinary offence.
79. Exhibits G, H and I raised other matters. Mr Phelim McGuinness accepted the claimant’s explanations in relation to those matters and they did not form any further part in his decision-making process.
80. After the conclusion of the interview and discussion of individual charges, the claimant acknowledged that there been ‘financial benefit in five or six incidents’. He stated that he did not have anything to add. He confirmed that he felt he had received a fair hearing. He stated:-
“You have given me the opportunity and I can’t think why I did it, it looks bad on me. I can’t explain those ones.”
81. The meeting adjourned at 1330 hours, approximately one hour and twenty-five minutes after its commencement. The meeting reconvened 15 minutes later.
82. The claimant was advised that he was being dismissed. He was orally advised, on two separate occasions, that he had the right to appeal this decision. On the first occasion he was advised specifically:-
“You can appeal against the decision in writing within five days of receiving your decision via letter.”
83. The claimant stated:-
“In black and white it points that I have done wrong, I cannot even explain. You were pushing me and I can’t explain, maybe another client did come in I can’t even remember putting it on the system, you do so many things. Can’t explain the extra date. I apologise, not admitting guilt, but cannot explain.”
84. The dismissal letter issued on 26 January 2016. It stated:-
“Further to the disciplinary meeting that was held on 25th of January 2016 I am writing to confirm the outcome of the meeting.
You were invited to attend a disciplinary meeting to discuss the following allegations:
Alleged gross misconduct for failure to adhere to company sales process for the purposes of financial gain
(1) You cancelled a booking on 22 October at 9.51 am. You re-booked the same rooms for a different company at a lesser value 10 minutes later. No confirmation was sent to the client for this. You then cancelled this booking @12.05 pm on 2 November and put the original booking back on the system for the original company for the original higher value. This resulted in your forward order book and targets being lower than they should be.
(2) You cancelled a booking on 22 October at 10.02 am. You re-booked the same rooms for a different company at a lesser value the same day. No confirmation was sent to the client for this booking. You then cancelled this booking at 11.25 am on 5 November and put the original booking back on the system for the original company for the original higher value. This resulted in your forward order book and targets being lower than they should be.
The above examples resulted in your commission targets being approximately £10,000 lower than they should have been.
(3) There are 4 different examples of a booking being made for a company for one specific date on each booking. On each of those bookings you then added a random day later in the year. No e-mail confirmation was sent to the client for this random day later in the year. By doing so it meant that the original value of the booking would not count for your forward order book meaning your targets would have been lower.
The above four examples resulted in your commission targets being approximately £47,000 lower than they should have been.
I presented these to you at your disciplinary meeting and you confirmed the following:
You could not explain how this had happened.
The above issues were discussed in detail and you agreed that there was no explanation for this happening.
As a result of the above I can confirm that your gross misconduct warranted a disciplinary sanction being issued. As this is considered to be gross misconduct you are summarily dismissed without notice. I can confirm that your last day of employment would be 25th of January 2016.
You have the right of appeal against this decision to Kevin Scruby IST Director, within five days of receipt of the disciplinary outcome. This should be made in writing, stating the reasons for your appeal.”
The claimant did not appeal within the five days. He did not seek to appeal at any later date. At the tribunal hearing, in cross-examination, he stated that he had thought that he had to consult a solicitor and that his solicitor had been late in getting back to him. The tribunal does not accept that this was true. It is clear from the papers in this case and from the evidence of the claimant that the claimant was educated and articulate. He had been able to comment in detail on the content of investigation notes. He had been able to participate in both the investigation meeting and in the disciplinary hearing. He had been advised, twice orally and once in writing, of his right to appeal. He could easily have lodged that appeal with a brief letter. The tribunal concludes that the claimant’s statement that he thought he had to contact a solicitor is entirely without foundation.
85. The claimant sought to argue, in the course of the tribunal proceedings, that the respondent had already replaced him before his dismissal by recruiting a Mr McDonagh. However, after hearing the evidence of Mr David O’Neill and Mr Kevin Scruby and after considering the papers the tribunal is satisfied that Mr McDonagh had been recruited to replace Mr Patrick Gallagher. Mr Patrick Gallagher had moved from an associated company, Avanta, to Regus in November 2015 and had resigned from Regus on 22 January 2016. The claimant sought to argue that the computer records, at the time of the dismissal, still showed Mr Patrick Gallagher as having been associated with Avanta. The tribunal prefers the clear evidence of Mr David O’Neill, that he had transferred and that the record had simply had not been updated at the relevant time.
86. Part of the claimant’s claim to the tribunal concerns an incentive payment of £500.00. This incentive scheme was separate from the bonus scheme at the core of this case. The bonus scheme at the core of this case related to individual bonuses, dependent on the achievement of individual monthly targets. The incentive scheme was separate. There was no contractual documentation in relation to this incentive scheme. Mr David O’Neill stated, in evidence, that it was dealt with on the same principles as the bonus scheme which was clearly a discretionary scheme. The claimant could point to no evidence that the incentive scheme, uniquely, was a contractual and binding scheme. If that had been the case, the tribunal would have expected to see a clear contractual document underlying such proposition. It seems highly unlikely that against the background of discretionary bonuses, one minor addition to those discretionary bonuses would have, for some unexplained reason, been accorded contractual and binding status. The only document that the claimant pointed to, to support his argument, was a notification of the results of that incentive scheme for the period from 1 October 2015 to 31 December 2015. That document does not state that this incentive scheme was contractual and binding. It is entirely consistent with the proposition that the incentive scheme was purely discretionary. It is equally consistent with the proposition advanced by the claimant that it was contractual. It does not add anything to the argument. The only evidence before the tribunal in relation to this matter is that of Mr David O’Neill who stated that it was conducted on the same principles as the general bonus scheme. Given that the tribunal has concluded that it is highly unlikely that the respondent, in the absence of any contractual documentation produced by either side, would have given this particular small addition to the general bonus scheme contractual status, the tribunal concludes that the incentive scheme was a discretionary scheme.
Decision
Unlawful discrimination/Detriment
87. The unanimous decision of the tribunal is that a prima facie case of unlawful discrimination/detriment has not been established in this case. In fact there appears to be no evidence to support such an allegation. The tribunal has taken into account the following matters:-
“(i) The claimant had been granted flexible and part-time working on successive occasions by the respondent.
(ii) There was no evidence before the tribunal of any delay or any difficulty caused by the respondent on any occasion in relation to an application for flexible or part-time working.
(iii) On the most recent occasion, the application for flexible and part-time working had been granted by Mr David O’Neill without any evidence of delay or difficulty.
(iv) The unrebutted evidence of Mr David O’Neill was that the slowest day of the week was Friday. The current flexible working pattern of the claimant had been Monday to Thursday. Mr David O’Neill stated and his evidence was not rebutted, that the flexible working arrangement had worked well.
(v) The last approval of flexible and part-time working had included a three month probation period. There was no evidence that that probation period had been raised or that the claimant had faced any difficulties in the operation of that flexible working pattern.
(vi) The unrebutted evidence of the respondent’s witnesses was that the respondent had encouraged and had facilitated both part-time working and flexible working.
(vii) The claimant’s accusations about remarks were vague and unspecified. Those accusations were entirely uncorroborated They had not been the subject of contemporaneous complaints; even informal complaints. The respondent’s witnesses convincingly denied making such remarks.
(viii) The claimant did not raise the issue of those alleged remarks or raise an allegation of unlawful discrimination/detriment during either the investigation meeting or during the disciplinary hearing. In the disciplinary hearing, the claimant had been represented by his alleged comparator.
(ix) The investigation process had commenced because complaints had been raised by colleagues of the claimant. No respondent could reasonably have ignored those complaints.
(x) The tribunal has concluded that the investigation process and the disciplinary process were conducted fairly and that there is absolutely no evidence of any unlawful motivation in either the commencement or the continuance of the disciplinary process.
(xi) The alleged comparator put forward by the claimant was in entirely different circumstances. In that case the comparator had brought the incident to the respondent’s attention and had admitted guilt. Furthermore, it had not been an established pattern of behaviour but a single incident. The fact that the comparator was a full-time worker is entirely insufficient to raise a prima facie case of unlawful discrimination/detriment.”
The claims of unlawful discrimination/detriment are therefore dismissed.
Unfair dismissal
88. The first issue for the tribunal is the reason for the dismissal. The tribunal is satisfied, in the circumstances of this case, that the reason for this dismissal had been misconduct. There is absolutely no evidence of any other reason. It is clear that the entire process started with complaints from colleagues and that it was entirely related throughout to the conduct of the claimant.
89. The unanimous decision of the tribunal is that the procedure conducted by the respondent in this matter had been fair and reasonable. It has to be remembered that the procedure has to be judged against an objective standard of fairness and reasonableness, bearing in mind that an employer is not obliged to conduct an investigation to the standards expected of a police force in a criminal investigation and that a disciplinary hearing is not expected to have been conducted to the same standards as a judicial hearing. These matters must be judged against a realistic and objective standard.
90. The investigation in this matter had been commenced because of concerns raised by a fellow reservation representative and by the head of meeting room sales. The respondent could not reasonably have ignored the concerns raised by these individuals. The decision to conduct an investigation by Mr David O’Neill had therefore been entirely fair and reasonable.
91. Following the initial computer checks carried out by Mr David O’Neill, the claimant had been notified of all the matters causing concern in the course of the investigatory meeting conducted on 13 January 2016. The claimant might well have been advised in advance of those matters before that meeting. However, such a step is not obligatory. The issue is whether the investigation had been reasonably thorough and whether or not the claimant had been given a full opportunity to respond to the concerns raised by the employer. The tribunal is satisfied that this had been the case. The claimant criticised the fact that the respondent had relied heavily on computer checks in relation to the bookings rather than ‘lifting the telephone’ and ‘speaking to a human being’. These matters concerned entries on computer systems generated by the claimant. Checks on that computer system had been entirely reasonable. There was no evidence that the computer system had at any stage ever been shown to be unreliable. The proposition that a reasonable employer conducting a reasonable investigation would have double-checked what had been apparent from the computer records by ‘speaking to a human being’ is not supportable. It is also not the case that every lead, however fanciful, needs to be chased down by an employer. If, as in the present case, only one rational explanation is apparent from the evidence, ie that the claimant had deliberately manipulated bookings to maximise bonus entitlement, that is sufficient. A reasonable employer is not obliged to go further to speculate on unlikely explanations and to ‘speak to a human being’.
92. The claimant had been an experienced reservation representative. He had been asked for an explanation shortly the relevant events had taken place. He had been given every opportunity to produce an explanation. He could not do so. He did not ask for and did not seek access to the Titan system. If he had asked for such access it would have been granted. It seems to this tribunal to be an irrelevant issue anyway. Even at this point, the claimant could not suggest a single type of entry on Titan which might have assisted his position.
93. The tribunal is content that Mr David O’Neill had conducted a reasonable investigation in this matter and that he had been entitled and the respondent would have been entitled to refer the matter further to the disciplinary process.
94. Mr Phelim McGuinness had conducted the disciplinary hearing fairly. He had listened carefully to the explanations, such as they were, put forward by the claimant in relation to certain matters. He had accepted those explanations in relation to certain matters. He had been generous in giving the claimant the benefit of the doubt. The claimant himself, at the conclusion of that hearing, accepted that he had received a fair hearing. After a lengthy disciplinary hearing the claimant could not explain consistent patterns of behaviour that in reality had only one rational explanation, ie that he had engaged in manipulation of bookings to maximise bonus entitlement. The claimant had been represented during the hearing and had had a full opportunity to put forward any explanation that he had for his behaviour.
95. The decision had also been substantively fair. As indicated above, there had been no rational explanation, either suggested, or reasonably apparent from the facts. A reasonable employer could have come to no other conclusion than that the claimant had deliberately manipulated data relating to bookings to maximise bonus entitlement. The fact that this particular method of manipulating data had not been specifically prohibited in any written document is irrelevant. Any individual would have known that falsifying and manipulating data for financial gain is wrong and that it would be a disciplinary offence which could lead to dismissal.
96. The tribunal is also satisfied that the decision to summarily dismiss the claimant had been a proportionate decision in all the circumstances. It was certainly well within the band of reasonable responses open to a reasonable employer. The claimant cannot argue rationally that he should have received any lesser penalty because his alleged comparator had received a Final Written Warning. The circumstances of the alleged comparator had been entirely different. He had raised the matter himself. He had brought it to the attention of the respondent. It related to a single instance. He had admitted guilt.
Breach of contract/Unauthorised deduction from wages
97. The final part of this claim relates to a claim for £500.00 which the claimant alleges had contractually due to him as an incentive. As indicated above, the tribunal is satisfied that this scheme had been entirely discretionary. The claimant had no contractual entitlement to any sum under this scheme. The document outlining a particular series of awards under this scheme in the latter part of 2015 does not indicate that the scheme had in fact been contractual. This claim is therefore also dismissed.
98. All claims are therefore dismissed.
Vice President
Date and place of hearing: 9 – 11 January 2017, at Belfast
Date decision recorded in register and issued to parties:
