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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCullough v Antrim & Newtownabbey Borough ... [2016] NIIT 01384_16IT (13 December 2016)
URL: http://www.bailii.org/nie/cases/NIIT/2016/01384_16IT.html
Cite as: [2016] NIIT 01384_16IT

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THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1384/16

 

 

 

CLAIMANT: Glenn McCullough

 

 

RESPONDENT: Antrim & Newtownabbey Borough Council

 

 

 

DECISION

The unanimous decision of the tribunal is that the claim of unfair dismissal is dismissed. The claimant is however entitled to 12 weeks net pay in lieu of notice amounting to £2,679.96

 

 

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms N Wright

Ms V J Foster

 

 

Appearances:

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

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

 

Background

 

1. The claimant had been employed by the respondent Council, and its statutory predecessors, for some 12 complete years, latterly in relation to ground maintenance.

 

2. There had been a history of discord between the claimant and a manager, Mr Mark Wilson. That disagreement led to a grievance from the claimant against Mr Wilson. That grievance was not upheld, either initially or on appeal.

 

3. The claimant was investigated in 2015 in relation to various alleged disciplinary matters, including an allegation of unauthorised absence (unauthorised annual leave). Following that investigation, the other charges were not proceeded with by the respondent and the charge of unauthorised absence proceeded to the disciplinary process.

 

4. In the course of the investigation process the claimant had produced a covert recording of a conversation between him and Mr Wilson on 30 June 2015 in relation to annual leave.

 

5. A further charge of covertly recording a conversation with Mr Wilson was added to the existing charge of unauthorised absence.

 

6. The charge of unauthorised absence was not upheld. The charge of covert recording was upheld.

 

7. The claimant was dismissed summarily with effect from 23 February 2016. His internal appeal was unsuccessful.

 

8. The claimant lodged a claim of unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') on 19 May 2016. The claim also alleged a failure to pay contractual and statutory notice pay contrary to the 1996 Order and the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

 

Relevant law

 

9. 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.

 

10. 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."

 

11. 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."

 

12. 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."

 

13. 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."

 

14. 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."

 

15. 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.

 

Warnings

 

16. In Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, the Court of Appeal (GB) considered a case where an employee had been dismissed for alleged misconduct and where the employer had taken into account a Final Written Warning which had been issued to the employee at an earlier date. The employee disputed the circumstances in which the Final Written Warning had been given. The Employment Tribunal and the Employment Appeal Tribunal had concluded that the misconduct dismissal, taking into account the Final Written Warning, had been a fair dismissal.

 

The Court of Appeal approved the EAT decision that:-

 

" ... the essential principle laid down in them [the authorities] is that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it. "

 

The Court concluded:-

 

" ... The broad test laid down [in equivalent GB legislation] is whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant."

 

17. The Court continued that:-

 

" ... in answering that question, it is not the function of the ET to re-open the final warning and rule on an issue raised by the claimant as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a 'nullity'. The function of the ET is to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance, which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct. "

 

The Court of Appeal went on to say:-

 

" ... it is relevant for the ET to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning. They are material factors in assessing the reasonableness of the decision to dismiss by reference to, inter alia, the circumstance of the final warning. "

 

18. Lord Justice Beatson stated in relation to the question of warnings:-

 

" 37. I add one further observation about the written warning. In this appeal, the appellant sought to revisit the question whether the final written warning should in fact have been issued. She did so by maintaining that where, at the hearing which led to the warning, there was conflicting evidence which wholly or significantly undermines the evidence which led to the disciplinary process, it is 'manifestly inappropriate', within the tests in the cases of Stein v Associated Dairies Ltd [1982] IRLR 444 and Tower Hamlets Health Authority v Anthony [1989] IRLR 394, to issue the written warning without further investigation. The court was invited to consider the details of that evidence. It was argued that, in the light of it, it was unreasonable in later disciplinary proceedings which led to dismissal for the employer to take account of the fact that a written warning had been issued. These arguments vividly illustrate the need for a restrictive approach to the question of when it is legitimate for a Tribunal considering the fairness of a dismissal to go behind a final written warning given in the past.

 

38. The requirement in Stein v Associated Dairies Ltd and Tower Hamlets Health Authority v Anthony that there be either 'bad faith', 'an oblique or improper motive' or that it was 'manifestly inappropriate' to give the warning shows that what is intended is a restrictive approach. To give 'manifestly inappropriate' the broad meaning the appellant has invited us to give it, a meaning which involves the tribunal and the appellate bodies, is either inconsistent with such an approach or significantly lowers the threshold. The appellant's arguments in this appeal, if accepted, open up the prospect of tribunals, the EAT, and this court, when considering the lawfulness of a dismissal, later and sometimes often considerably later than the earlier disciplinary process which led to a formal warning, considering and unpicking the details of that process and having to inquire into the adequacy of the evidence. It would involve doing so even when the earlier process and the formal warning has not been challenged, has been unsuccessfully challenged, or where a challenge has been made but not pursued. There is, however, a need for finality. ... ."

 

Misconduct

 

19. It is clear that employer's internal rules cannot cover every single instance of misconduct, nor should they be expected to do so. Any list of examples of misconduct or of gross misconduct would necessarily be an non-exhaustive list. Nevertheless it is clear that an employer's position is strengthened if the alleged misconduct has been specifically covered in their internal rules. Harvey at Division D1, Paragraph 1397 states that:-

 

"Where the disciplinary offence is covered explicitly in a rule, this may be to the management's advantage in two ways, apart from making the standard required explicit to the employees. First, it may draw attention to some particular requirements which the employer considers to be important even though it is not necessarily universally considered to be so."

 

Harvey also states at Paragraph 1397.01 that:-

 

"Another good example of the benefits for an employer of a clear policy arises where new technology or working methods are in question. Personal use of office computers was an early example of this - once it was realised that it was in practice impossible to ban it outright, it became advisable to have communicated rules in extensive use and/or inappropriate use, thus avoiding any 'you never told me' defences when disciplining an employee for wholly unacceptable use. A later topic of concern has been the use of social media by employees. An employer may clearly have an interest in this if done during working hours, but more difficult questions arise if done in the employee's own time. Prima facie this raises issues of privacy and personal freedom, but there can be cases where there is still sufficient work connection (not confined to obvious cases of breaching employer confidentiality or posting comments derogatory about the employer) to justify the employer taking disciplinary action ( Game Retail Ltd v Laws [UKEAT/0188/14] ) . - This is an area where it can be difficult to strike the right balance, and it will clearly bolster the employer's arguments if the issue was covered by a policy communicated to that employee."

 

20. In Game Retail Ltd v Laws [UKEAT/0188/14] the Employment Appeal Tribunal had been invited to issue general guidance on the misuse of Twitter and social media as potential misconduct for an employee. It declined to do so. It concluded that:-

 

"The test to be applied by ETs is that laid down in Jones; that is, whether the employer's decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case. That test is sufficiently flexible to permit of its application in contexts that cannot be envisaged when it was laid down. The questions that arise will always be fact-sensitive and that is true in social media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick box mentality that is inappropriate in unfair dismissal cases."

 

Privacy

 

21. There appears to be no case law currently where breaches of privacy were argued to have amounted to misconduct or gross misconduct. Those matters nevertheless fall to be determined according to the ordinary statutory test as emphasised in Game Retail Ltd (see above).

 

22. The only time where this issue of covert recording appears to have been mentioned in current case law is the case of Chairman and Governors of Amwell View School v Mrs C Dogherty [UKEAT/0243/06/DA]. That case concerned not the potential application of breaches of privacy as instances of misconduct but rather the extent to which covert recordings would be admissible in evidence before employment tribunals.

 

23. In that case the EAT referred, at Paragraphs 34 onwards, to arguments by the employer to the effect that admitting such evidence would have amounted to a breach of privacy and a breach of Article 8 of the European Convention on Human Rights. Article 8 provides that:-

 

"Everyone has the right to respect for his private and family life, his home and his correspondence."

 

The facts of the Dogherty case involved covert recordings of disciplinary and appeal hearings. The EAT rejected ' entirely the proposition that what occurred could possibly amount to the interference with any aspect of the right to respect for family life enjoyed by any member of the panels of Governors'. It described that argument as an ' extraordinary broad submission [which] was not supported by any authority', and concluded that ' the integrity of the relationship between a governor and a member of his or her family is not touched at all by admission of the evidence in this case'.

 

The EAT determined that members of the relevant panels had put themselves forward to carry out an aspect of voluntary work and in doing so were in the public domain while acting in that role. It stated:-

 

"It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in the socially important public or quasi-public function. In our judgment, the privacy element of the right to 'respect for private life' of such a school governor is not engaged at all in the present circumstances."

 

24. The EAT also concluded that there was no evidence that recordings which had been made covertly in these circumstances were criminal or in breach of any specific statute.

 

Procedure

 

25. A Case Management Discussion had taken place on 12 August 2016 by telephone conference call. Directions were given in the course of that Case Management Discussion in relation to the interlocutory process and in relation to the exchange of witness statements. The claim was listed for three days from 15 - 17 November 2016.

 

26. Following the directed exchange of witness statements, the respondent objected to the contents of the claimant's witness statement. It alleged that significant portions of that witness statement were extraneous to the issues properly before the tribunal in relation to an allegation of unfair dismissal. The respondent stated that several pages of that witness statement related to a history of the relationship between the claimant and Mr Wilson and that such matters were not relevant. The respondent sought a further Case Management Discussion to discuss this issue. The claimant objected to the respondent's objections.

 

27. A further Case Management Discussion was held on 11 November 2016. The respondent expanded on its objections in relation to both relevance and the potential for wasted costs and delay. There was discussion about the contents of the witness statement which was not opened, at that stage, to the Vice President. There was discussion in relation to the decision of the Employment Tribunal in Kalu v Brighton and Sussex University Hospitals NHS Trust [UKEAT/0609/12/BA].

 

28. The Vice President ruled that the tribunal would proceed with the existing written witness statements but with additional oral evidence-in-chief being granted for any witness as required and the hearing was extended for one additional day on Friday 18 November 2016. In the event, that additional day was not required.

 

29. The Vice President directed that this matter could be raised again at 11.00 am on the first day of the hearing after the panel had read the witness statements and, to the extent necessary, parts of the agreed bundle.

 

30. At 11.00 am on the first day of the hearing, counsel for the claimant made it plain that the claimant accepted the proper focus of the tribunal was in relation to the fairness or unfairness of the dismissal for the purposes of the 1996 Order. It was not in dispute that there had been an element of discord between the claimant and Mr Wilson which had resulted in the grievance. The only relevance of such discord was as an explanation for the covert recording of the conversation between the claimant and Mr Wilson. The history of the relationship between the claimant and Mr Wilson was therefore of limited relevance to the claim before the tribunal.

 

31. The hearing proceeded on that basis.

 

32. The claimant gave evidence on his own behalf. Using the witness statement procedure, the respondent called:-

 

(i) Ms Roberta Flaherty, Leisure Centre Manager, who had conducted the investigation into the charge of unauthorised absence;

 

(ii) Ms Geraldine Girvan, Director of Operations, who had conducted the disciplinary hearing; and

 

(iii) Dr Carol Ackah, an independent HR Consultant, who chaired the panel which had heard the internal appeal.

 

33. An issue emerged in cross-examination of Ms Flaherty as to the origin of the additional disciplinary charge in relation to covert recording. The respondent sought permission to call an additional witness outside the witness statement procedure. That witness would have to give evidence orally in relation to both evidence-in-chief and cross-examination. Following discussion, that application was granted. The respondent called Ms Joan Cowan, the Head of Human Resources for the respondent Council, who gave oral evidence-in-chief and was cross-examined in relation to that matter.

 

34. The evidence of the respondent was completed on the first day of the hearing, ie 15 November 2016. To facilitate counsel, the second day of the hearing commenced late at 1.00 pm and the evidence of the claimant was taken at that point.

 

The submissions of the parties were heard on the morning of 17 November 2016. The decision was reserved.

 

35. The panel met on 25 November 2016 to review the evidence and the submissions and to reach its decision. This document is that decision.

 

Relevant findings of fact

 

36. The claimant had been employed for 12 complete years. Latterly he had been employed in grounds maintenance.

 

37. The claimant had a history of discord with a particular manager, Mr Mark Wilson. He believed that Mr Wilson had been trying to drive him out of employment.

 

38. The relevance of this history of discord in relation to a claim of unfair dismissal is limited. Nevertheless, the claimant devoted the first five pages of his witness statement to a detailed account of that history. He felt that there had been a ' cover up' of the alleged wrongdoings of Mr Wilson.

 

39. As indicated above, the tribunal is not going to examine, and to reach findings of fact on, a range of alleged incidents between 2012 and 2015. The role of the tribunal in this instance is quite narrow. It is firstly to consider the dismissal of the claimant on 23 February 2016 and to determine whether that dismissal was fair or unfair for the purposes of the 1996 Order. Secondly it is to determine whether there had been a contractual entitlement to notice pay and, if so, of what amount. The tribunal is not going to conduct a free ranging public enquiry into the workings of the ground maintenance department in the respondent Council.

 

40. That said, the claimant's allegations about Mr Wilson over 2012 - 2015 appear to have been unreasonable and bordering on obsessional. He complains, for example, of receiving a warning for not wearing Personal Protection Equipment, when that warning had also been given at the same time to another employee who had been in the same circumstances. He complains, for example, that he had been criticised when he had driven the wrong way through an exit. He complains, for example, of a disciplinary charge which had been upheld on the basis of CCTV evidence and his own evidence, even though that charge had been upheld, not by Mr Wilson; but by a different manager; and by yet another manager on appeal. He complains that his assertion to Mr Wilson that he could not use machinery at one point because of the effects of medication had been queried by Mr Wilson even though the claimant accepted that he had been driving a car at that time on council property.

 

41. The claimant had been on sick leave from work from 15 May 2013 to 4 December 2013 because of injuries which he stated he had received in the incident which had led to disciplinary proceedings and to a Final Written Warning.

 

42. The claimant had also been absent from work on sick leave from 18 September 2014 to 27 May 2015 with stress.

 

43. The claimant alleged, in the course of the hearing, that the disciplinary proceedings which had led to the Final Written Warning had been inappropriately delayed and that the Final Written Warning should therefore have been disregarded or not given any particular weight. That allegation is important in relation to the limited jurisdiction of the tribunal in this matter, because the respondent had taken the Final Written Warning into account in dismissing the claimant. It is clear that the disciplinary charges, which had related to an incident on 7 May 2013 were essentially that the claimant had falsified a report of this incident, contravened health & safety policy and misled the investigation into the incident. These charges had been upheld, not by Mr Wilson, but by a Ms McAlister, a senior manager, and on appeal by Mr Hugh Kelly, another senior manager. The initial disciplinary finding had been on 13 March 2015 and the decision on appeal had been on 23 April 2015.

 

44. These proceedings had been delayed, not as had been suggested by the claimant, solely because of the respondent, but also because of the claimant's absence from work for extensive periods, by his failure to facilitate the release of medical records and further by his frequent request to re-schedule meetings. For example, it had taken four attempts to schedule the actual disciplinary meeting.

 

45. The tribunal notes that the claimant had been found guilty of serious disciplinary offences. He had not been dismissed for these offences. He had been given a Final Written Warning and had been demoted.

 

46. The tribunal concludes that the delay in concluding these disciplinary proceedings had not been solely or even mainly the fault of the respondent and that the Final Written Warning which had been issued on 13 March 2015 had clearly still been current, ie within the stated two years of its operation, at the time of his dismissal. There were no reasonable grounds on which it could or should have been disregarded by the respondent in those disciplinary proceedings leading to dismissal or on which it should have been regarded as in some way ' stale'.

 

47. It is no part of this tribunal's role to re-open and to re-run the disciplinary proceedings which led to the Final Written Warning. As LJ Beatson said in Davies (above) there should be ' a restrictive approach to the question of when it is legitimate for a tribunal considering the fairness of a dismissal to go behind a Final Written Warning given in the past'.

 

There is no evidence that either the warning or the disciplinary proceedings had been conducted ' in bad faith', for an ' oblique or improper motive' or that they had been ' manifestly inappropriate'.

 

48. The claimant lodged a grievance, on 28 May 2015, on his return to work shortly after his second and lengthy period of sick leave. The grievance complained about Mr Wilson. This was not a detailed complaint of a series of alleged incidents as put forward by the claimant in the present proceedings. The grievance focused on two alleged incidents which the claimant stated had occurred on his return to work on two particular days, ie 26 May 2015 and 27 May 2015. No other alleged incident was raised in the grievance. The claimant did make a general comment halfway through the grievance that:-

 

"I believe Mark Wilson has an agenda to cause me problems or get me into trouble at work."

 

That general comment did not raise or could not reasonably have been read as raising a litany of other specific complaints.

 

49. The grievance was thoroughly and painstakingly investigated by Mr Norman Hannon, the Assistant Recreation Manager. He did not uphold the grievance. In fact he stated:-

 

"In my opinion there is no evidential basis for this grievance which has been raised because of past resentment towards Mark Wilson and to ensure your demands were met for a two day per week open-ended phased return (specifically Tuesday and Wednesday), revised duties, working at a location of his choice and working under a line manager of his choice)."

 

It is clear that Mr Hannon had concerns about the claimant's motive in lodging the grievance.

 

50. The claimant appealed the outcome of the grievance and that appeal was not upheld by Ms Geraldine Girvan on 3 February 2016.

 

51. The claimant stated in his witness statement to this tribunal at Paragraph 55:-

 

"I believe that I have been unfairly dismissed by Antrim and Newtownabbey Borough Council. I feel that I have been let down by the Council as my employer. I think Mark Wilson has an agenda to get me the sack for whatever reason. I feel the Council covered up for Mark Wilson's behaviour. They seem to only take on board one side of events, which caused me considerable stress and anxiety."

 

52. It therefore seems clear that the claimant wished to put forward a case that there had been some form of conspiracy on the part of staff of the respondent to cover up for Mr Wilson's behaviour. This ill-defined conspiracy would potentially have involved a wide range of unconnected staff, including Ms McAllister, Mr Kelly, Mr Hannon and Ms Girvan. In cross-examination, the claimant had been repeatedly asked whether he was alleging that Mr Hannon and Ms Girvan had been part of the cover up in relation to the determination of the grievance. His answers were vague, evasive and difficult to follow. In any event, the tribunal concludes that there is no evidence that the determination of the grievance had been anything other than painstaking and fair.

 

The Council, given the limited scope of the written grievance, went to extraordinary lengths in allowing the claimant to rehearse in detail a litany of unconnected allegations against Mr Wilson.

 

53. The claimant believed that he should have been placed on a phased return to work from 27 May 2015 and that he should have been working elsewhere. He was dissatisfied with the conditions surrounding his return to work after the second period of sick leave.

 

54. On 30 June 2015, the claimant telephoned Mr Duffy at work to request annual leave. He asked for the next four Tuesdays and Wednesdays off work. Given the conditions of his proposed phased return to work, that would have meant the entire month of July off work during the busiest time of the year for grounds maintenance. He later asked for the Wednesday off of that week. Later that day he went to see Mr Wilson in his office. He turned his phone to ' record' and recorded his conversation with Mr Wilson. He did not inform Mr Wilson that he was doing so and he did not ask Mr Wilson's permission. He did not ask for written confirmation from Mr Wilson that his request for annual leave had been granted. He did not ask for an e-mail confirming the exact details of the leave granted in full. He did not bring a witness with him to observe the conversation. He chose instead to covertly and without permission record the conversation.

 

55. The recording of the brief conversation on 30 June 2015 was as follows:-

 

"The claimant :

 

I'll sign them holidays if you want to put them through on the form, I'll sign them now.

 

Mr Wilson:

 

No I'll put them on TMS.

 

The claimant:

 

Have you tomorrow in?

 

Mr Wilson:

 

Yes.

 

The claimant:

 

Have you the next month in?

 

Mr Wilson:

 

Tomorrow's in, yes.

 

The claimant:

 

Have you the next month in?

 

Mr Wilson:

 

Yes I phoned HR and they're going to check the phased return and get back to me. Jennifer's off today so they said they would get her to ring me tomorrow.

 

The claimant:

 

Well I went on Monday and the doctor said anything in relation to the phased return you've to write a letter whatever you want to know write a letter.

 

Mr Wilson:

 

Jennifer's dealing with it.

 

The claimant;

 

That'll do alright.

 

56. That recording was not determinative of the issue. It could be read as indicating that the leave for the next day (the first Wednesday) had been agreed but that leave for the next month, ie for the four successive Tuesdays and Wednesdays, had not been agreed but had been subject to a check by HR. It could also have been read as indicating that it had been agreed but that a separate issue relating to phased return had been referred to HR.

 

57. The position was that both the claimant and Mr Wilson had a different understanding of what had been agreed and what had not been agreed in the course of the two meetings on 30 June 2015. Neither had followed the correct procedure for applying for or granting annual leave. That would have involved reducing the application for leave and the grant of leave to writing. Both had been breach of the procedure in that respect. However, it was not in contention that the formal and doubtless sensible procedure had fallen into disuse, as such procedures often do. Staff in that particular area generally did not follow the formal procedure for leave applications and informality reigned. Neither the claimant nor Mr Wilson were disciplined for breaching the procedure. Neither was any other member of staff in that area.

 

58. The claimant went on holiday to Scotland in early July 2015 and returned on 12 July 2015. When in Scotland he had been phoned by the respondent to inform him that his leave had not been authorised. He disputed that allegation. On his return he was notified that he would be investigated on a potential disciplinary charge of unauthorised leave. He was separately notified that his grievance would be considered at a meeting with Robert Hannon on 28 July 2015.

 

59. At the grievance hearing on 28 July 2015, the claimant was represented by a GMB trade union official. Mr Hannon allowed the claimant to expand, in detail, on all his complaints about Mr Wilson. The notes of that meeting comprised seven closely typed pages.

 

60. Two days later on 30 July 2015, the claimant attended the disciplinary investigation into a potential disciplinary charge of unauthorised leave. That meeting was conducted by Roberta Flaherty. The claimant was again represented by the same GMB official. The claimant argued that the leave had been authorised in the initial telephone call on 30 June 2015 and that it had then been confirmed by Mr Wilson later that day in the second meeting which had been a face-to-face conversation.

 

61. During the first investigation meeting, the claimant did not disclose that he had a recording of the second meeting, on 30 June 2015, between him and Mr Wilson. He had that recording with him on his mobile telephone. He did not alert anyone to its existence. The claimant knew exactly what was being put to him in the disciplinary investigation, ie that he had gone on leave on days in July without authorisation.

 

62. That much is clear from the documentation. The claimant had been told in a letter dated 10 July 2015 that he would not receive pay for the unauthorised leave. It said:-

 

"As you've continued to take this leave without permission by your line manager (Mr Wilson) your period of absence from Monday 6 th of July 2015 onwards will be treated as unauthorised absence and you will not receive pay."

 

Furthermore, the invitation to the investigation meeting which was dated 27 July 2015 clearly referred to ' unauthorised absence from 6 th of July 2015'.

 

63. During the first investigation meeting, the claimant alleged that there had been witnesses to the second conversation with Mr Wilson on 30 June 2015. When asked, he refused to name these ' witnesses'. The question of witnesses was not pursued later by the claimant and was not raised by the claimant during this tribunal. It seems to have been an entirely baseless allegation.

 

64. The claimant alleged, during the tribunal hearing, that he did not disclose the existence of the covert recording during the first investigation meeting because Mr Wilson had not yet interviewed and because he wanted to hear what Mr Wilson was going to say.

 

The tribunal is satisfied that this explanation is nonsense. The claimant had known what the issue had been; ie whether Mr Wilson had granted him leave during July 2015. Since he had been facing a potential disciplinary charge, he would have known that Mr Wilson's version of events was that he had not been given leave. That was clear from the letter of 10 July 2015, the letter of 27 August 2015 and from the context of the interview.

 

The claimant had no need to wait until Mr Wilson had been formally interviewed. He had been on a formal written warning. He had known that he was facing potential further disciplinary action and that his employment had been in jeopardy. He alleged (falsely) that there had been witnesses to the second conversation on 30 June 2015. When asked, he had refused to identify those witnesses. He had the covert recording with him. He has never asserted that the recording had been left elsewhere. He had clearly been pressed in relation to witnesses, ie in relation to corroboration. There had been no rational basis for the claimant to decide that he would not disclose the covert recording until Mr Wilson had been formally interviewed. More importantly for the purposes of this case, the respondent had been entitled to be sceptical about the claimant's failure to disclose the covert recording at an early stage.

 

65. The only inference that the tribunal can reasonably draw is that the claimant knew, contrary to his repeated assertions to the tribunal, that he had been wrong to covertly record the second conversation with Mr Wilson. The respondent, when determining the disciplinary charge would have been driven to the same conclusion. The first investigation meeting was the point where anyone in his position would have produced the recording.

 

The tribunal also notes, in particular, that the claimant accepted, in the course of a meeting on 12 August 2015 (more later), that he knew he had not been permitted to make the covert recording.

 

66. In the meantime, the grievance procedure was continuing. Mr Wilson and Ms Lindsay were interviewed in detail on 31 July 2015. Mr Wilson was further interviewed on 6 August 2015.

 

67. In a case with two separate and concurrent processes, ie a disciplinary process and a grievance process, a further lengthy meeting took place on 4 August 2015 which apparently was not directly related to either process. It appeared to relate to stoppages from pay. The claimant attended, again represented by the GMB, and the respondent was represented by two individuals. The claimant disclosed, during that meeting, that he had a recording of the second meeting on 30 June 2015 with Mr Wilson. He was told that this would be dealt with in the disciplinary investigation process.

 

68. He argued that he had not been paid. He alleged that Ms Jennifer Buckley in HR had approved his leave. She denied doing so. He accused her of lying. It is notable that the claimant did not allege to this tribunal that Ms Buckley had approved his leave or that she had been lying. It was remarkable that he could accuse somebody of lying in such an important matter and then apparently resile from that assertion. This allegation appears similar to the allegation that there had been witnesses to the second conversation on 30 June 2015; it had a limited shelf-life and was soon forgotten.

 

He was advised to get back to work and that he was absent without leave.

 

69. The grievance procedure meanwhile continued with a further lengthy interview of the claimant on 12 August 2015. The claimant attended and was again represented by the GMB. He alleged that he had recorded the second meeting on 30 June 2015 with Mr Wilson because he felt that Mr Wilson had been out to do him harm. He stated that he had not felt any need to ask Mr Wilson for permission.

 

The claimant denied throughout the process and throughout the tribunal hearing that he had been aware that he had not been permitted to record conversations without permission. However, during this meeting, on 12 August 2015, when it was put to him he said:-

 

"I am aware I am not permitted to do it, but this is to prove what I am saying."

 

70. The disciplinary investigation process continued on 2 October 2015, the claimant attended and was again represented by GMB. He was asked about the covert recording that he had disclosed, for the second time, during the grievance meeting on 12 August 2015. (It had been disclosed for the first time on 4 August 2015.) The claimant stated that he had not disclosed the covert recording at the first investigation meeting because Mr Wilson had not yet been formally interviewed. The recording was listened to by the meeting. Mr Wilson was separately interviewed on the same day. Both maintained their respective positions. The claimant stated that leave for the four Tuesdays and Wednesdays in July had been granted and Mr Wilson stated that it had not been granted.

 

71. On 14 October 2015, Mr Hannon issued a 13 page detailed report into the grievance. The grievance was rejected. Mr Hannon stated that the claimant had not provided any evidence to support his claims. He also recommended that the ' covert and underhanded recording' be considered under the disciplinary policy.

 

72. On 26 October 2015, Mr Hannon wrote a six page letter to the claimant setting out the outcome of the grievance. He stated:-

 

"It is my opinion that there is no evidential basis for this grievance which has been raised because of past resentment towards Mark Wilson and to ensure your demands were met for a two day per week, open-ended phased return (specifically Tuesday and Wednesday), revised duties, working at a location of his choice and working under a line manager of his choice. When these demands were initially challenged by Mark Wilson, the grievance was raised."

 

73. Ms Flaherty concluded the disciplinary investigation process by determining that the allegation of unauthorised absence should proceed to a disciplinary panel for formal determination. She decided that the two other matters, ie insubordination and failure to follow procedures would not proceed further.

 

74. During cross-examination, Ms Flaherty stated that she had accepted that the evidence in relation to unauthorised absence was weak. It was one person's word against another. Neither had reduced the process to writing. The recording was ambivalent. She felt that the charge of unauthorised absence had to be ' heard together' with that of covert recording. This does not make sense. It makes less sense when it is clear that Ms Flaherty had not considered and had not recommended a charge of covert recording. It would therefore have been prescient for her to have considered any interdependence between the charge she recommended and the charge subsequently recommended by Ms Cowan.

 

75. It is clear from the evidence that Ms Cowan decided that the charge of covert recording should proceed to discipline. The claimant had accepted that he had covertly recorded the second conversation with Mr Wilson on 30 June 2015. He had accepted, on 12 August 2015, that he knew that he had not been permitted to record covertly.

 

76. The disciplinary hearing into the two charges was heard on 17 February 2016 by Ms Girvan. The charge of unauthorised absence was not upheld. Ms Girvan took the view that there had been room for genuine misunderstanding between the claimant and Mr Wilson as to whether leave had been granted for July.

 

77. Ms Girvan upheld the charge of covert recording and summarily dismissed the claimant.

 

78. The claimant had been represented by a GMB representative and the statutory three step procedure had been followed. In particular, the claimant was advised of his right to appeal.

 

79. The appeal was heard by a three person panel chaired by Dr Carol Ackah. The other two members were a representative from a different trade union and a senior manager. The appeal was heard on 9 May 2016.

 

80. The panel unanimously upheld the initial decision and the penalty of summary dismissal.

 

Decision

 

Unfair Dismissal

 

81. The tribunal's first task is to determine the reason for this claimant's dismissal. The tribunal is satisfied that the reason for the dismissal was conduct, ie a combination of the covert recording and the Final Written Warning. This is a potentially fair reason for the purposes of the 1996 Order.

 

82. The tribunal unanimously decides that the respondent has discharged its burden of proof in this respect. The claimant's suggestion that there had been a conspiracy between Mr Wilson and various officials to remove him from employment is unsupported by any evidence. Such a conspiracy would have required a concerted effort from a range of managers, including Mr Wilson, Ms McAlister, Mr Kelly, Mr Hannon, Ms Flaherty, Ms Cowan, Ms Girvan and the three person appeal panel. Such a concerted conspiracy is all the more improbable when it is clear that the claimant could have easily been dismissed in relation to the earlier disciplinary offence but had received only a demotion and a Final Written Warning.

 

83. Turning to procedural matters, it is clear that Ms Flaherty, when concluding her investigation, felt that the disciplinary case in relation to unauthorised absence had been weak. It had been one person's word against another in a situation where the proper procedure had not been followed and where there had been room for legitimate confusion. Her ex post facto rationalisation that the charge of unauthorised absence ' needed to be heard together' with the charge of covert recording is unconvincing. The charge of unauthorised absence had been recommended by Ms Flaherty before the charge of covert recording had been recommended by Ms Cowan.

 

84. Nevertheless, this issue is irrelevant to the fairness of the dismissal. The claimant was dismissed for covert recording, taking into account the Final Written Warning. The charge of unauthorised absence had not been upheld and was not relied on in the decision to dismiss.

 

85. The respondent had conducted a painstaking and careful investigation into the covert recording and indeed into everything else. The claimant had been interviewed on multiple occasions. Mr Wilson had also been interviewed. The investigatory and disciplinary processes had been carefully undertaken and cannot be properly criticised.

 

86. There had been a reasonable belief in guilt. The claimant did not deny covert recording. In fact he had accepted on 12 August 2015, that he knew he had not been permitted to record another employee covertly. The fact that a separate (pre-disciplinary) investigation process had not taken place in relation to the covert recording is not significant. The claimant had belatedly produced the covert recording and there had been no dispute about the circumstances in which the recording had been made. There had been nothing to investigate.

 

87. There are no substantive procedural issues in this case. The claim that the involvement of Ms Girvan in determining the disciplinary hearing was in some way unfair or prejudicial is of no substance. The issue to be determined in that disciplinary hearing was significantly different from the issues raised in the grievance. Furthermore, neither the claimant or his trade union representative had objected to her chairing the disciplinary hearing even though both would have been aware of her involvement in relation to the separate grievance. Finally, even if there had been some merit in the claimant's arguments on this point, the disciplinary decision had been re-considered in an appeal by a three person panel.

 

88. The real issue in this case is the reasonableness of the penalty of summary dismissal.

 

89. The respondent had been correct to have taken the extant Final Written Warning into account in reaching its disciplinary decision; both initially and on appeal. As indicated above, there has been no evidence of any ulterior motive behind that warning and no evidence of anything which would justify this tribunal re-opening the earlier disciplinary proceedings to consider the validity of the Final Written Warning.

 

90. The respondent did not include covert recording in either a separate policy or in the non-exhaustive list of gross misconduct or of (ordinary) misconduct. That in itself is not surprising. The use of mobile telephones for video recording or audio recording is a relatively new phenomenon. That said, the tribunal would repeat Dr Ackah's recommendation that the respondent should update its policies and its disciplinary procedure as soon as possible.

 

91. The claimant knew that he was not permitted to record another employee without permission. That is clear from his admission on 12 August 2015. Even without that clear admission (which the claimant had apparently forgotten by the time the tribunal sat), the respondent had been entitled to take the view that the claimant must have known that covert recording of another employee was wrong. Not every instance of potential misconduct must be set out seriatim in a disciplinary code before it can be regarded as misconduct.

 

92. That said, the respondent overstated the seriousness of the misconduct. It had not been a ' gross invasion of privacy'. It did not interfere with private life (see Dougherty above). It did not amount to a criminal offence. This was not ' Wikileaks'. This had been a sneaky and underhanded recording of an entirely work-related conversation in a work-related setting. Private life, family life and the European Convention had not been engaged.

 

93. The respondent's witnesses, in evidence, took a purist and pedantic approach to covert recording. In their mind it was wrong; an offence of strict liability where the reason did not matter, whether that reason was valid, or as in this case, absurd. When asked whether covert recording might be permissible in the extreme case of a vulnerable employee being harassed, they conceded that it might be justifiable. This is an area of potential misconduct which is considerably more nuanced than the position taken originally by the respondent's witnesses.

 

94. Ms Girvan concluded that the covert recording constituted ' gross misconduct'. She took the Final Written Warning into consideration and summarily dismissed the claimant. The appeal panel accepted that the covert recording had been gross misconduct.

 

95. The tribunal is not in place to simply rubberstamp disciplinary decisions, provided an employer might conceivably, on a bad day, have imposed such a decision. The test is one of reasonableness. While a tribunal cannot substitute its own subjective decision for that of the employer, it must apply an objective test. It must determine whether the penalty was one which could reasonably have been imposed by a reasonable employer. Within the scope of that objective test, summed up in the non-statutory ' reasonable responses' test, it is for the tribunal to determine whether the dismissal was fair or unfair for the purposes of the 1996 Act.

 

96. The tribunal concludes that the covert recording of a discussion with a manager was not gross misconduct. Applying the objective standard required under the 1996 Order, the tribunal concludes that it was ordinary, but nevertheless significant, misconduct.

 

97. Again applying the objective standard, the tribunal concludes that the decision to dismiss the claimant had been fair. The instance of significant (but not gross) misconduct in covertly recording the second conversation with Mr Wilson on 30 June 2015, taken together with the final written warning, entitled a reasonable employer, acting reasonably, to have dismissed the claimant.

 

98. This claim of unfair dismissal is therefore dismissed.


Notice Pay/Breach of Contract

 

99. There is a separate claim in relation to notice pay. Article 118 of the 1996 Order provides for minimum periods of notice. In the present case the minimum period is twelve weeks net pay. Paragraph (6) of Article 118 provides:

 

"This Article does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party".

 

 

100. There was no evidence of any contractual right to notice which exceeded the minimum period of notice provided in Article 118.

 

101. This is an action for breach of contract; ie breach of the contractual entitlement to a minimum period of notice which has been incorporated in the employment contract by the 1996 Order - Westwood -v- Secretary of State for Employment [1985] ICR 209 HL.

 

102. There is no statutory or other fixed definition of the circumstances in which an employer has the right to terminate a contract without notice; ie to summarily dismiss, on the ground of misconduct. It is largely a question of fact for the tribunal to determine whether the conduct was sufficiently serious to be regarded as repudiatory - Harvey Vol 1 Division All para [519].

 

103. In the present case there had been significant misconduct. The covert recording had clearly been wrong. However the respondent had regarded it in somewhat overblown terms; as a gross breach of privacy and a potential criminal offence. It had been neither. Even coupled with the final written warning, the decision of the tribunal is that the contract of employment had not been repudiated by the claimant. It had not been gross misconduct. It justified dismissal but not dismissal without notice.

 

104. The claimant is therefore entitled to 12 weeks net pay in lieu of notice; ie 12 x £223.33 = £2,679.96.

 

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

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 15-17 November 2016, Belfast

 

 

Date decision recorded in register and issued to parties:

 


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