THE INDUSTRIAL TRIBUNALS

Case Ref No:  2242/15

CLAIMANT:			Emma McKay

RESPONDENT:		1.  Lil’ Butterflies Day Nursery
2.  Amanda McConkey 
     Trading as Lil’ Butterflies Day Nursery

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the second-named respondent.  The second-named respondent is ordered to pay the claimant the sum of £12,755.84 by way of compensation.  

Constitution of Tribunal:
Employment Judge:	Employment Judge McCaffrey
Members:			Mr J Barbour
				Mrs E Gilmartin	
	
Appearances:
The claimant appeared in person.
Neither respondent appeared or was represented.

Background

1.	The claimant was employed at Lil’ Butterflies Day Nursery.  Her employer was the second respondent, Ms McConkey.  In all the circumstances of the case and given that we have no evidence to show that the first named respondent is a limited company, we direct the name of the second respondent be amended to read “Amanda McConkey t/a Lil’ Butterflies Day Nursery”.  

2.	The second respondent, Ms McConkey, had written to the Office of the Industrial Tribunals approximately a week before the hearing to advise that she would not be able to attend and setting out details in relation to her personal circumstances from which it appeared that she was in some financial difficulties.  When asked if she was applying for a postponement of the case, she indicated that she would like the case to go ahead without her presence.

3.	In the light of this, and given the provisions of Article 27(5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 2005, we decided to proceed with the case in Ms McConkey’s absence.  In so doing we considered the information which she had provided in relation to the issues in the case.  We told the claimant at the end of the hearing that we had made a finding of unfair dismissal and would set out our reasons and calculation of the award due to her in a written decision.  

The Facts

4.	Having taken into account the documentation provided by the respondent and having heard evidence from the claimant, from her union representative Irene Graham and two of her colleagues Toni-Louise Service and Michelle Muldoon, we make the following findings of fact.  

The claimant was employed by the second named respondent for eight years from January 2007 until 10 June 2015 as a room leader at the second named respondent’s nursery.

5.  	The claimant had taken her four year old daughter to the park after work one day in May 2015 and there had been an incident involving other children annoying the claimant’s daughter.  She had told her friend and colleague Ms Service about this matter later that evening.  Ms Service then posted a picture on her Facebook page, “tagging” the claimant.  This picture was of a mother and daughter with the child asking to go to the park.  The caption read, “Sorry love, Mummy can’t take you to the park today, I hate other people’s children”.  When the claimant saw this she “liked it” on Facebook and responded to a comment by Ms Service that this was like her, agreeing that it was “so like me”.

6.	This posting on Facebook came to Ms McConkey’s attention and she subsequently asked the claimant about it at work on 27 May 2015.  The claimant indicated that it was nothing to do with work nor did it have any children’s names mentioned.  Ms McConkey was unhappy, given that the claimant worked with children and considered it gave the wrong impression.  She told the claimant that she was putting her on a three month probation.  The following day Ms McConkey suspended the claimant on full pay.  The claimant was of the view that Ms McConkey was annoyed because the claimant had refused to work overtime on 26 May, due to family commitments. 

7.	Ms McConkey forwarded, with her response to the Industrial Tribunals, a copy note stating that she had attended a meeting with Nuala Lavery (link social worker) on 30 May 2015.  The note continues, “I advised her that I had terminated Emma McKay’s employment and that I was concerned about comments and photos on her Facebook.  Nuala advised I was doing the right thing and advised me to keep her up to date with everything concerning this issue.”  This note is dated 30 May 2015.     

8.	The claimant was subsequently sent a text message by Ms McConkey asking her to come to a meeting on 10th June.  She did not give any details of what the meeting was about, but it transpired that this was a disciplinary meeting.  When the claimant attended that meeting, she asked if she could bring a colleague and Michelle Muldoon attended the meeting with her.  Ms Muldoon attended to give evidence at the hearing and confirmed the claimant’s account of this meeting.  Ms Muldoon was preparing to take notes while Ms McConkey handed the claimant an envelope.  The claimant held it in her hand and Ms McConkey then asked her if she was going to read it.  When the claimant opened the letter (which was dated 9 June 2015), she found the letter read as follows:

	“You attended a disciplinary meeting on 28 May 2015 at which you were advised of suspension on full pay until an investigation was carried out.  This is now fully completed and I would like to inform you that as from today (10th June 2015) your employment with Lil’ Butterflies Day Nursery is terminated on the grounds of gross misconduct.

			Yours faithfully

			Amanda McConkey 
			Manager”

	The letter gives no details of the gross misconduct or the evidence for this finding. The claimant confirmed in evidence that she was not told exactly what gross misconduct she was accused of, the findings against her or the evidence for these findings.  The claimant was not sent a letter in advance of the disciplinary meeting setting out the alleged misconduct or the likely consequences if she was found to have been responsible for the misconduct.  Secondly, the disciplinary meeting of 10th June did not give her any opportunity to put forward her own case.  Thirdly, the dismissal letter she was given on 10th June did not set out any right of appeal.  

9.	Following the meeting the claimant contacted Ms Graham and on her advice, wrote to the second named respondent seeking an appeal.  There was a further meeting on 10 July 2015 but according to the evidence given by the claimant and Ms Graham, the claimant was not allowed to put forward her point of view at that meeting.  The second named respondent alleged in her documentation that she had previously given the claimant verbal and written warnings in relation to her time-keeping but the claimant said she had never been given any warnings previously.  No policy in relation to social media use was produced either at the disciplinary meeting or the appeal and no disciplinary policy was produced, although it had been requested.
10.	The claimant confirmed that she had been paid all the money she was due up to her dismissal on 10 June 2016.  She had been in some financial difficulties following her dismissal and had been in receipt of benefits including Income Support of £147 fortnightly from 27 June 2015 to date.  She had been obliged to move to a hostel with her daughter for some time and was now settled in a new home at the time of her dismissal.  Her uncle had also been suffering from terminal cancer.

The relevant law

11.	Unfair Dismissal 

It is well established that the claimant has the right not to be unfairly dismissed as set out in Articles 130 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  We have not set out the relevant case law as it is well-established and easily accessible.

Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

“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 it 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 –

(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)	relates to the conduct of the employee,

(c)	is that the employee was redundant, or

(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision...”

	In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A which provides as follows:-

“130A	(1)	An employee who is dismissed shall be regarded for the purposes of 
			this Part as unfairly dismissed if –

(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b)	the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

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

(3)	For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.

The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him, a written decision to the employee and if appropriate, the right to appeal the decision.

Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.   	

Reasons and Decision

12.	As we have set out above the statutory disciplinary and dismissal procedure comprises of three stages:

a letter setting out the alleged misconduct and inviting the claimant to a disciplinary meeting;

a disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; and thirdly

a written decision to the employee and the right of appeal.

	In this case none of these stages was properly followed.  The claimant’s evidence was that she was requested to attend the meeting by text message, but the message did not set out the alleged misconduct or the likely consequences.  It did not, either, set out her right to be accompanied although the claimant was accompanied at the subsequent meeting.  Further, at the meeting itself the claimant was not given the opportunity to put forward her side of the story or to give any explanation.  Indeed the alleged misconduct was not even put to her.  She was simply handed a letter (which clearly had been written the previous day) and told that she was being dismissed for gross misconduct.  That letter did not tell the claimant that she was entitled to a right of appeal, and it was only on the claimant’s own initiative that she sought advice and then requested an appeal.  Although the meeting was granted, it is clear from the evidence given by the claimant and Ms Graham that the “appeal” meeting did not actually discuss the alleged misconduct in any detail.  

13.	Accordingly, it is our finding that the claimant’s dismissal was automatically unfair as the three step statutory disciplinary and dismissal procedure was not followed contrary to Article 130A of the 1996 Order set out above.

14.	We have considered the appropriate uplift for the award under Article 17(3) of the Employment (Northern Ireland) Order 2003.  In our view in this case there is such a complete failure by the employer to follow the statutory procedures properly that it would be just and equitable to increase the compensatory award by 50%.  The second named respondent completely failed to give the claimant proper notice of the alleged misconduct or allow her the opportunity to put her side of the story.  Indeed it is clear from the date on the dismissal letter that the decision to dismiss had been taken in advance of the disciplinary meeting, which is totally contrary to both the letter and the spirit of the law on unfair dismissal.  No appeal was offered, and an appeal only took place at the claimant’s initiative.  In short, this is one of the worst examples of a disciplinary procedure we have come across.  The claimant said, and we accept, that her dismissal came at a particularly difficult time for her personally.  The resultant loss of earnings meant that she had to give up her home and move to a hostel with her four year old daughter.  While the claimant is now happily achieving some stability again, she has found it difficult to find other work although she did produce to us a list of jobs for which she has applied.  We can appreciate that having been dismissed from her previous job, this might make it more difficult to find other work especially as she was dismissed for alleged gross misconduct.  We also find it surprising that the claimant was dismissed whereas Ms Service, who actually posted the relevant photograph and comments on Facebook and “tagged” the claimant was not dismissed by the respondent.

15.	We direct the second named respondent shall pay the following amount to the claimant:-

	Basic Award

	The claimant was employed by the second named respondent for eight years and her pay of £528 per month is equivalent to £121.84 per week.  The claimant was age 32 at the date of dismissal.

	8 x 1 x 121.84 = £974.72

	Compensatory Award

	The claimant was entitled to eight weeks notice pay for the period from 10 June 2015 to 19 August 2015

		8 x 121.84 = £974.72

	Loss from the date of dismissal to the date of hearing i.e. 20 August 2015 to 1 March 2016.		
	
28 weeks at £121.84 =				£3411.52

Future loss

We consider that it would be just and equitable in the circumstances to award the claimant 26 weeks future loss, given the difficulties she has had in obtaining alternative employment.

		26 weeks x £121.84 =				£3,167.84

Loss of statutory rights				£  300.00

Total compensatory award				£7,854.08

Uplift 50%						£3,924.04

Total compensatory Award			        £11,781.12

	Total award for unfair dismissal		        £12,755.84

16.	This award is subject to recoupment in accordance with the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations 1996 (as amended).  The monetary award for unfair dismissal is £11,781.12.  The amount of the prescribed element is £4,142.56 and the dates to which the prescribed element applies are from 27 June 2015 to 1 March 2016.  The amount by which the monetary award exceeds the prescribed element is £7,638.56. 

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

Employment Judge:

Date and place of hearing:  1 March 2016, Belfast.

Date decision recorded in register and issued to parties: