Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 7358/17

 

 

 

CLAIMANT: Martin Hughes

 

 

RESPONDENT: Newry, Mourne & Down District Council

 

 

 

DECISION

1.          The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. His claim is therefore dismissed in its entirety.

 

2.          The unanimous decision of the tribunal is that the respondent did not fail to comply with its duty to make reasonable adjustments. His claim in that regard is therefore dismissed in its entirety.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Mr I Carroll

Mr I Foster

 

 

Appearances:

The claimant was represented by Mr A Hanna.

 

The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

ISSUES AND FACTS FOUND

 

1.             The claimant claimed that he had been unfairly dismissed. The claimant was employed by the respondent as an electrician from 16 January 1995 until his dismissal on 2 August 2017 on the grounds of gross misconduct.

 

2.             He also claimed that the respondent had failed in its duty to make reasonable adjustments for his disability in refusing to make an audio recording of his disciplinary hearing.

 

3.             The respondent accepted that the claimant suffered from a disability at the material time, namely psychological difficulties, anxiety and depression, but disputed that it had failed to make a reasonable adjustment. The respondent had been aware from 2014 of the claimant's medical history.

 

4.             The misconduct alleged by the respondent arose from what might properly be described as an unhealthy preoccupation over a number of years with the qualifications of a colleague to carry out his duties. At one point in 2014, the claimant asserted that his colleague had "committed fraud", potentially a criminal offence, which the claimant hoped would be investigated by the police. In the claimant's view, the fraud was by obtaining employment with the respondent because he was not properly qualified.

 

5.             The claimant first raised the issue with the respondent repeatedly from around 2010, and he continued to assert his belief in his evidence to the tribunal, although he did not seek to produce any evidence in support of it.

 

6.             In his view, the man in question did not hold the requisite qualification to enable him to work unsupervised; that he should hold a particular approved status; and that he was not a "time served" electrician. The colleague in question was made aware on each occasion of the allegations being made against him by the claimant, and had on several occasions expressed his great unease about the substance and number of the claimant's complaints about him.

 

7.             The respondent conducted a number of investigations in response to the claimant's complaints, in 2010, 2012 and 2014, in each case concluding that the other employee was suitably qualified, and that in fact he did not need the approved status disputed by the claimant to do his job. The respondent also asked the claimant's Trade Union to conduct an investigation, which also found that the claimant's complaints were without foundation.

 

8.             To that end, the claimant was informed by Mr Kevin Scullion, Assistant Director of the claimant's work area, in writing on 19 May 2015 that the matter was considered by the respondent to be closed. He was informed in the letter of 19 May 2015 that, if he raised the allegations again, the respondent would consider it to be a disciplinary matter, possibly amounting to gross misconduct.

 

9.             On 26 February 2016, however, the claimant repeated his allegations. This time, he refused to obey instructions from the same colleague, who at that time was acting-up as his line manager, whose qualifications he again challenged. The claimant had also left an application form for Mr Scullion in his pigeonhole, apparently to be directed to the same colleague, for him to apply for an electrical certification scheme, which meant that the claimant was, in effect, still disputing his qualifications.

 

10.          The claimant on 28 February sent an email to his line manager, Mr Danny Rice, and to the Chief Executive, again challenging his colleague's qualifications.

 

11.          As a consequence of these actions, Mr Scullion took steps to obtain written reports of the claimant's conversations with other employees.

 

12.          At 6.54 am on 2 March 2016, Mr Scullion received an email from the claimant, the contents of which again raised the issue of his colleague's qualifications. It also challenged the legitimacy of Mr Scullion's warning in the letter of 19 May 2015 about the potential disciplinary consequences of raising the issue again.

 

13.          Mr Scullion was sufficiently concerned by the time the email was sent and its disjointed and confused wording to form the view that the claimant might be mentally unwell. To that end, he sought the assistance of the respondent's HR department.

 

14.          This resulted in Mr Scullion arranging a meeting at around 8.30 am on 3 March 2016 with the claimant. Mr Scullion was accompanied by Louise Fitzsimons, Manager of the respondent's HR department, who had never previously met the claimant.

 

15.          Ms Fitzsimons advised Mr Scullion that, as this was an informal meeting to discuss recent events, there was no requirement to permit the claimant to be accompanied.

 

16.          When the claimant arrived, Mr Scullion reminded him of the letter of 19 May 2015, in which the claimant had been advised of the potential serious consequences of repeating his earlier allegations about his colleague. The claimant stated that he did not consider the matter as closed, and that he continued to have genuine health and safety concerns about this man continuing to work without proper qualifications or experience.

 

17.          When Mr Scullion asked the claimant how he was feeling, the claimant replied, in terms, that he wanted to punch him and Louise Fitzsimons in the head, and to jump out of the window. The claimant accepted that he had said that he wanted to punch Mr Scullion in the head, but denied that he also directed it to Ms Fitzsimons. He ascribed his comments to being in "fight or flight mode".

 

18.          Ms Fitzsimons stated in her evidence that she was clearly of the impression that it had been directed at her as well. She also stated that, whilst taken aback by it, as she had had no previous dealings with the claimant, she took her lead from Mr Scullion, who displayed no signs of any fear.

 

19.          Mr Scullion concluded the meeting by saying that he remained concerned about the claimant's behaviour. It was adjourned until the claimant could find representation, but Mr Scullion told the claimant that, in the meantime, he would not permit him to return to work. The meeting reconvened at around 10.30 am the same day. This time, the claimant was accompanied by a work colleague, as no union representative was available. Mr Scullion told the claimant that this was potentially a disciplinary matter, but also that he had concerns for the claimant's health and well-being.

 

20.          The claimant was told to go home, and that the respondent would arrange an assessment by its Occupational Health (OH) provider as soon as possible. On
4 March 2016, Ms Fitzsimons wrote to the claimant, telling him that an OH assessment had been arranged for him on 6 March 2016. The claimant replied by email, refusing to attend.

 

21.          Ms Fitzsimons arranged another OH appointment for the claimant on 7 March 2016, telling him that he must attend it. The claimant replied that his GP had advised him that he was too unwell to attend.

 

22.          The claimant was later assessed by an OH doctor on 20 April 2016, who concluded that the claimant was not fit to work, or to participate in disciplinary proceedings.

 

23.          The claimant was later assessed by another OH doctor, who concluded that he remained unfit to return to work. The doctor stated however that he would be fit to meet with the respondent, as long as he could be accompanied, in a neutral environment, and if he was told in advance what the meeting was about.

 

24.          In September 2016, the respondent directed Mr Eamon McManus, a Manager employed with the respondent, to carry out a disciplinary investigation in to the claimant's conduct in February, as well as investigating formal grievances raised by the claimant. These included another allegation about his colleague's qualifications; and allegations of "employer maladministration" by the respondent in its handling of the disciplinary and grievance processes.

 

25.          The respondent followed the OH doctor's recommendations following the assessment of 20 April 2016 in arranging to hold a disciplinary investigation meeting at a neutral venue, permitting the claimant to attend accompanied by someone outside the usual category of work colleague or trade union representative. The respondent also set out the allegations being investigated, in broad terms, his continued and repeated allegations against his work colleague, despite the clear warning in the letter of 19 May 2015; and the threat of violence allegedly made by him towards Mr Scullion and Ms Fitzsimons.

 

26.          The claimant stated that he was unable to attend the first investigation meeting on
6 October 2016 because his union representative was unavailable, and he was unable to attend the second date offered of 2 November 2016 due to ill-health.

 

27.          The claimant on 29 October 2016 had sent an email to the respondent about his inability to attend on 2 November 2016, stating that he was not fit to attend "any work-related matter". The claimant also asked that, as a reasonable adjustment, he should be allowed to make written submissions and evidence to the allegations already notified to him. The respondent considered this request to be reasonable, and allowed him until 5 December to do so.

 

28.          The claimant did not provide any such submissions or evidence, despite letters from the respondent, reminding him in writing on two further occasions.

 

29.          In the absence of any input from the claimant to the investigation process, Mr McManus produced his investigation report on 2 March 2017. In it, he concluded that the allegations against the claimant were made out; he further concluded that the claimant's grievances were not made out. The claimant repeatedly conceded under cross examination at the tribunal hearing that, in the absence of any response by him to the offer by the respondent to provide written submissions and evidence, Mr McManus's findings had been reasonable. He also said that it was "regrettable" that he had not used the opportunity offered to him by the respondent.

 

30.          As a result of the findings in Mr McManus's report, a disciplinary hearing was convened by the respondent. A number of reasonable adjustments were made to facilitate the claimant to present his case, including prior written notification of issues to be determined by the disciplinary panel; a number of adjournment requests by the claimant were immediately agreed to by the chair, Janine Hillen, an Assistant Director in the respondent's organisation; and he was granted additional time for questioning
Mr McManus.

 

31.          At the first disciplinary hearing on 25 April 2017, the claimant requested an audio recording of the proceedings. This was initially refused by Ms Hillen because the respondent no longer audio recorded such proceedings; instead, a written record would be made and retained. It was of course also open to the claimant to make his own written notes. It is of note that his first request for audio recording was not stated by the claimant to be in any way connected to his disability. Ms Hillen was not therefore asked by the claimant to provide it as a reasonable adjustment.

 

32.          There was no allegation from the claimant, then or at the tribunal hearing, that any of those notes omitted anything of significance. The claimant's representative was later supplied with copies of all the handwritten notes. Upon being contacted by the respondent as to how much longer he would require to read them, his representative stated that he was nearing completion.

 

33.          It was stated at one point by the claimant that he had difficulty in making out certain portions of the handwritten notes. The respondent asked the claimant to identify the relevant portions, but he did not respond.

 

34.          It was later asserted by the claimant that the vast majority of the notes were illegible, which runs contrary to what was said initially. The claimant asked that all of the handwritten notes be typed, but the respondent refused, on the basis that it would take an inordinate length of time. Instead, the respondent offered the claimant and his representative the opportunity to sit down with the note-taker, who would decipher any portions they could not. Again, the claimant did not respond to this offer.

 

35.          The policy of not recording disciplinary hearings had come in to effect in early 2017, but the claimant was unaware of it, and sought to have the proceedings audio recorded because it had been done for other people in the past. During the course of the disciplinary hearing, which was adjourned or postponed on a number of occasions to facilitate the claimant, he was certified by OH as being fit to attend.

 

36.          The disciplinary hearing was to be conducted by Ms Hillen by way of review of the investigation report alone, without the requirement of witness attendance. The claimant requested permission to call witnesses. In accordance with the respondent's policy on the issue, the claimant was asked by Ms Hillen to provide details of what their evidence would bring to the proceedings which would warrant departure from the proposed course, but the claimant failed to provide any information.

 

37.          During the course of the disciplinary hearings, the claimant raised four grievances in connection with the conduct of the proceedings. The claimant was told on each occasion by Ms Hillen that they would be considered as part and parcel of the disciplinary hearing, and that he could appeal any decision on them to a disciplinary appeal hearing in accordance with the respondent's policy.

 

38.          Upon considering the evidence and Mr McManus's investigation report, Ms Hillen concluded that the allegations against the claimant should be upheld. She found that only one of the allegations, that relating to inappropriate use of the grievance procedure, was major misconduct. She found that the other four, arising from his continued campaign against his colleague, his breach of the warning in the letter of 19 May 2015, and his threat to Mr Scullion and Ms Fitzsimons, were all gross misconduct.

 

39.          Having considered the claimant's record of employment, and taking in to consideration the claimant's health issues, she nevertheless considered that the proper penalty was dismissal.

 

40.          The claimant appealed the outcome and penalty of the disciplinary hearing, which was chaired by Mr Rodger McKnight, an external HR consultant.

 

41.          The basis of the claimant's appeal was that the claimant was not given a fair hearing; that Ms Hillen had breached procedures and was not properly qualified to deal with the disciplinary hearing; that the investigation was not fair or reasonable; and that the outcome was unreasonable and unfair.

 

42.          It was only at the appeal hearing that an audio recording was requested by the claimant as a reasonable adjustment because of his disability. Despite being asked by the panel to provide evidence that audio recording would be a reasonable adjustment specific to his particular disability, the claimant did not do so.

 

43.          The only explanation he later provided was that he wanted to listen to the recording afterwards using headphones. As such, this appeared to amount to no more than a personal preference, unconnected to his disability.

 

44.          The claimant at the tribunal also stated that he could not read or write, but that he had not told anyone during this process because they had not asked. His assertion in this regard was offset by his ability to send emails; whilst the spelling was wayward, there was no further evidence adduced on this point by the claimant.

 

45.          The claimant also challenged the appointment of Mr McKnight because he was being paid by the respondent, but from the evidence it appeared to the tribunal that
Mr McKnight was properly appointed, and the claimant in his evidence to the tribunal conceded that Mr McKnight was independent, and had conducted the appeal hearing "immaculately".

 

LAW AND CONCLUSIONS

 

46.          The relevant legislation on unfair dismissal is to be found in Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 ("the Order"), it is for the employer to show the reason for the dismissal. Further, the employer must show that the reason shown by it is a reason falling within para (2). A reason falls within para (2) if it relates to the conduct of the employee.

 

Article 130(4) of the Order states as follows:-

 

"where the employer has fulfilled the requirements of para (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"

 

47. The leading cases in relation to conduct dismissals are summarised in the judgment of the Northern Ireland Court of Appeal in the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust 2009 NICA 47. In his judgment in that case, the Lord Chief Justice refers to the case of Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where Browne-Wilkinson J said as follows:-

 

"(1) the starting point should always be the words of [article 130(4)] 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, another quite reasonably take another;

 

(5) the function of the 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". The Court in the Rogan case also quoted with approval the following passage from the case of British Home Stores v Burchell 1980 ICR 303:-

" 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, there 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."

 

48. In the Rogan case, the Court described the task of the tribunal as follows:-

 

" 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 circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.

 

The Court of Appeal also noted that:-

 

" the judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal".

 

49. In the case of Salford Royal NHS Foundation Trust v Roldan 2010 IRLR 721 , the Court of Appeal in England and Wales held that 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.

 

50. The band of reasonable responses was also considered by the Court of Appeal of England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677 where Bean LJ stated:-

 

"" The band of reasonable responses" has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss "in accordance with equity and the substantial merits of the case". This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal's consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer".

 

51. As regards the impact of misconduct on the employment relationship, in the case of Neary v Dean of Westminster 1999 IRLR 288 , it was held that whether particular misconduct justifies summary dismissal is a question of fact. The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-à-vis the employer must all be considered in determining the extent of the duty of trust and the seriousness of any breach thereof.

 

52. The tribunal unanimously concludes that, in the terms of the test laid down in Burchell, the respondent carried out a comprehensive and fair investigation. It was under a clear duty of care to the claimant's colleague, who yet again was having his integrity and qualifications impugned.

 

53. There had been three separate previous investigations in to the claimant's conduct, including involvement by the claimant's own trade union, all of which had concluded that there was no substance to the claimant's allegations.

 

54. In truth, there was little to investigate of an evidential nature regarding the breach of the clear instruction of 19 May 2015, because the claimant, by his conduct had, in effect, provided ample material in his emails before and during the investigation process.

 

55. From his admitted behaviour, he also made it very clear that he did not accept the legitimacy of that instruction, and that he moreover had every intention of continuing to pursue his crusade against his colleague as and when he determined.

 

56. As regards the alleged threat to Mr Scullion and Ms Fitzsimons, the only issue in dispute by the claimant appeared to be whether or not it had been made to Ms Fitzsimons.

 

57. The claimant was afforded every opportunity to engage in the investigation process, to refute the assertions and to make representations in writing when he was unable to attend the investigation hearing due to illness. Indeed, the claimant conceded in evidence that the conclusions reached by Mr McManus in his report were entirely reasonable. He therefore, in effect, did not challenge them at the tribunal hearing.

 

58. The tribunal formed the view that many of the objections and issues raised by the claimant during the disciplinary process were red herrings, intended by him to stall its progress. The claimant failed to respond to the opportunity to supply written submissions; he failed to respond to the offers of assistance with the alleged illegibility of the notes; he also failed to respond to the offer of the disciplinary panel to reconsider its view on the audio recording if he told them why his disability required it.

 

59. The tribunal considered that, if these issues were genuine obstacles to him participating in a process which he knew from the outset could cost him his job, he would readily have accepted or at least responded to the respondent's repeated offers.

 

60. The tribunal further considers that the offers, made throughout a lengthy process, were reasonable, and were not challenged as such by the claimant in his evidence.

 

61. As regards the claimant's conduct concerning his resurrection of his complaint about his work colleague, it had already been communicated to him on 19 May 2015 that any such repetition could amount to gross misconduct. It therefore can have come as no surprise to him that his breach of that clear and reasonable work instruction would continue to be viewed as such by the respondent.

 

62. As regards the findings that his threat was to Mr Scullion and Ms Fitzsimons, which the claimant in evidence to the tribunal accepted as reasonable on the evidence available, it was essentially immaterial that they did not take it seriously enough to try to leave the room. The claimant clearly was indifferent to how either of them reacted when he said it, especially either to or in front of Ms Fitzsimons, whom he did not know, and therefore had no idea how she would react.

 

63. It is not for the tribunal to substitute its own views as to the penalty imposed for those of the respondent. It is however well established that even one finding of gross misconduct might reasonably be viewed as warranting a potential penalty of dismissal.

 

64. In this case, there were several such findings. In addition, the claimant demonstrated every intention of repeating his behaviour as and when he saw fit. Not only was he prepared to defy the authority of the respondent, but it had a clear duty of care to its employee, who was repeatedly on the receiving end of the claimant's eight-year campaign against him.

 

65. The tribunal unanimously concludes that the penalty of dismissal was within the band of reasonable responses of a reasonable employer. The claimant therefore has failed to establish that he was unfairly dismissed, and his claim in that regard is dismissed.

 

66. As regards the claim of failure by the respondent to make a reasonable adjustment on the grounds of the claimant's disability, the relevant legislation is contained in
section 4A of the Disability Discrimination Act 1995:

" 4A Employers: duty to make adjustments

 

(1) Where -

 

(a) a provision, criterion or practice applied by or on behalf of an employer, or

 

(b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

 

(2) In sub-section (1), "the disabled person concerned" means -

 

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

 

(b) in any other case, a disabled person who is -

 

(i) an applicant for the employment concerned, or

 

(ii) an employee of the employer concerned.

 

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

 

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

 

(b) in any case, that that person has a disability and is likely to be affected in sub-section(1).]"

 

67. The tribunal unanimously concludes that "the disabled person" in the legislation means that any reasonable adjustment must be meant to address the specific needs of an individual. The claimant appeared to suggest in his evidence that the mere fact of him having a disability meant that the respondent was therefore under a duty to provide audio recording just because he asked for it. This would not only be impracticable, it does not appear to the tribunal to accord with the clear wording of the relevant legislation.

 

68. The claimant was afforded the opportunity by the appeal panel to provide evidence which might cause it to review its original decision that it could properly depart from the respondent's policy. He did not do so.

 

69. The tribunal therefore unanimously concludes that the claimant has failed to establish that there was any such duty upon the respondent. His claim in that regard is also dismissed.

 

 

Employment Judge:

 

 

Date and place of hearing: 4 - 8 June 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: