FAIR EMPLOYMENT TRIBUNAL

CASE REF:	184/03 FET
						1168/03

CLAIMANT:		John William Emerson

RESPONDENT:	Northern Ireland Ambulance Service

DECISION 

The unanimous decision of the Tribunal is as follows:
(A)	The claimant’s complaint of unlawful political discrimination is not well founded and it is dismissed.
(B)	The claimant was unfairly dismissed.
(C)	The dismissal was unfair because of some important procedural defects.  If there had been no such procedural defects, there is a 100% certainty that the claimant could and would have been fairly dismissed in any event.
(D)	There should be a 100% “conduct” deduction from any basic award which might otherwise be payable to the claimant.

Constitution of Tribunal:

Chairman:	Mr Buggy
	
Members:	Mr Collins
		Mr Gourley

Appearances:

The claimant was represented by Mr Gerry Grainger, Barrister at Law, instructed by Michelle Savage, Solicitor.
  
The respondent was represented by Mr Barry Mulqueen, Barrister at Law, instructed by the Legal Services Directorate of the Central Services Agency.

REASONS

1.	In these proceedings, Mr John Emerson is the claimant and the Northern Ireland Ambulance Service is the respondent.  In February 2003, the claimant was in the employment of the respondent as an Emergency Medical Technician (a member of an ambulance crew).  He was employed by them from December 1996 until 3 April 2003.  He was summarily dismissed by the respondent with effect from the latter date.

The claims

2.	In these proceedings, the claimant makes two claims.  First, he asserts that he has been unfairly dismissed, contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  Secondly, he asserts that, in relation to the disciplinary process and in the context of the dismissal itself, he has been subjected to unlawful political discrimination, contrary to Article 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”).  

The issues at this stage of the case

3.	A case management discussion was held on 31 October 2005.  During that discussion, it was directed and agreed that, at this stage of the case, the tribunal should deal with the following issues:

(1)	Whether the claimant has indeed been subjected to unlawful political discrimination as alleged.

(2)	Whether the claimant has been unfairly dismissed.  

(3)	If the claimant has been unfairly dismissed because of procedural shortcomings, what was the percentage chance of the claimant being fairly dismissed in any event (in the absence of any such procedural shortcomings)?

(4)	If the dismissal was unfair should there be any “conduct” deduction from the basic award or from the compensatory award?  If so, what reduction should be made from the basic award and what reduction should be made from the compensatory award?

The sources of evidence and the arguments

4.	We received oral testimony from the following witnesses, who gave evidence on behalf of the claimant:

(1)	The claimant himself
(2)	Mr John Dempster, the Branch Secretary of the Northern Ireland branch of the Ambulance Service Union (“the ASU”)
(3)	Mr Ray Carrick, the Assistant General Secretary of the ASU
(4)	Mr Stephen Rice, the General Secretary of the ASU
(5)	Mr Richard Dundas
(6)	Mr Dennis Elliott

5.	We also received oral testimony from the following witnesses, who gave evidence on behalf of the respondent:

(1)	Ms Joanna Smylie
(2)	Mr Terry Gorman, who was a presenting officer on behalf of Management throughout the internal disciplinary proceedings.
(3)	Mr Brian McNeill, a member of the first stage internal disciplinary panel.
(4)	Mr Paul Nicholson, the other member of that panel.
(5)	Mrs Lorraine Gardner, the respondent’s Employee Relations Manager.
(6)	Ms Roisin O’Hara, the respondent’s Director of Human Resources and the Chair of the internal appellate disciplinary panel
(7)	Dr. David McManus, the Medical Director of the respondent and also a member of the appeals panel.
(8)	Ms Margie Greer, a non-executive director of the respondent and also a member of the appeals panel.

6.	 We saw the following documents:

(1)	Two Bundles, consisting of 760 pages in total.
(2)	Various miscellaneous documents which were submitted on behalf of the claimant.
(3)	Various miscellaneous documents which were submitted on behalf of the respondent.
(4)	Some “flip-chart” pages.

7.	We told the parties that we would have regard only to documents to which our attention was specifically drawn.

8.	The parties’ closing submissions were made mainly in writing, with the consent of both parties.  The procedures in relation to those written submissions (“the Submissions”) broadly followed those recommended by the EAT in Barking and Dagenham London Borough v Oguoko [2000] IRLR 179.  The Submissions were exchanged at the end of January 2006.  Each party had the opportunity to provide written comments (“Comments”) in respect of the other party’s Submission.  The time-limit for receipt of Comments expired seven days after the date of exchange of Submissions; Comments were received from both parties.  The Submissions and Comments were supplemented, in some respects, by oral arguments which were made during a hearing which took place on 22 February 2006.

9.	In arriving at our decision, we have taken careful note of all of the arguments which have been made to us, whether in the course of the Submissions, in the Comments, or in the course of oral argument.  Specific reference has been made to some of those arguments below.  The Submissions and the Comments provide a permanent record of each of the parties’ arguments.  In those circumstances, it is unnecessary to provide comprehensive details of the arguments in this decision.

The facts

10.	At paragraphs 11 to 74, we have set out findings of fact which are relevant to the issues which we have determined.  

11.	The respondent, the Northern Ireland Ambulance Service (“the NIAS”), is a public body.  Its main task is to provide ambulance services in Northern Ireland.  Within the respondent, the ultimate authority is the Board.  The Chairman of the Board is a non-executive director of the respondent.  (He is not an Officer of the NIAS).  The other members of the Board are all referred to as “directors”.  Some of them are non-executive directors.  Some of them are executive directors (in that they are Officers of the NIAS, and they are part of the day-to-day management structure of that body).  Ms Roisin O’Hara, the Director of Human Resources of the NIAS is an executive director.  So is the NIAS Chief Executive.  So is Dr David McManus.  (He is Medical Director of the NIAS).  Ms Margie Greer is a non-executive director of the NIAS.
  
12.	The Chief Executive of the NIAS, together with its executive directors, are all based in the same building.  There are usually weekly meetings of the executive directors.  All the executive directors have regular informal contact with one another.  

13.	The respondent employs hundreds of staff.  A large proportion of those staff are front-line staff (in that they are members of ambulance crews).  

14.	The Ambulance Service Union (“the ASU”) is a relatively new union in Northern Ireland.  As the name suggests, its aim is to serve the interests of front-line ambulance staff.  It has been in Northern Ireland for approximately five years.  Before the claimant joined the ASU, he was a member of UNISON, a trade union which serves the interest of a wide variety of staff.  He left UNISON because he did not believe he was getting effective representation.  He thought that this was affected by the fact that UNISON was a “super-union”, and that ambulance staff made up only a small proportion of the overall UNISON trade union.  He thought that front-line ambulance staff needed a specialist union, based in Great Britain, but with a regional office in Belfast.  

15.	Members of UNISON had to pay a political levy; ASU does not provide political funds to anybody.  The claimant prefers the ASU approach in this regard, because he believes that trade unions should be apolitical.  UNISON endorsed the Belfast/Good Friday Agreement.  The claimant disapproved of that initiative, because he does not believe that unions should tell people how to vote.  It was not suggested, by or on behalf of the claimant, that anyone within the Management of the NIAS was aware of the claimant’s views in relation to the involvement of unions in politics, or of his views in relation to political funds.  It was not suggested, by or on behalf of the claimant, that any treatment which he received was in any way influenced by any perception as to the claimant’s views on political funds, or by any perception as to his views on the appropriateness of a trade union endorsing the Belfast/Good Friday Agreement.

16.	For a considerable period, during the period immediately prior to his dismissal, the claimant was the assistant Northern Ireland branch secretary of the ASU, while also fulfilling the role of webmaster in respect of the Northern Ireland part of the ASU website.  Throughout that period, he was prominent in the affairs of the ASU.  A considerable number of staff within the NIAS were aware of that prominence. In October 2001, Mr Stephen Rice, Mr Ray Carrick and Mr John Dempster were part of a deputation which attended at a meeting of the Board of the respondent.  During that meeting, the Board Members were informed that the claimant was assisting Mr Gerry Boyd, in the latter’s position as Chairman of the Northern Ireland Branch of the ASU.  During the following month, solicitors acting on behalf of the then Chief 

Executive of the respondent (Mr Paul McCormick) wrote to the claimant to complain about the content of an internet link which was associated with the ASU website.  The letter was addressed to the claimant in his capacity as “Assistant Branch Secretary Northern Ireland (Acting), Ambulance Service Union”.

17. 	From the outset, the ASU wanted to be voluntarily recognised by the respondent for collective bargaining purposes.  At first, the correspondence between the ASU and the respondent was relatively constructive and conciliatory.  However, the respondent never did recognise the ASU for collective bargaining purposes.  During the years leading up to the date of the claimant’s dismissal, the correspondence between the ASU and the respondent became increasingly acrimonious.  In our view, the correspondence evidences the fact that, by the time of the claimant’s dismissal, many Officers at senior management level within the respondent were, in general, hostile to the ASU.  We have seen correspondence which shows that there had been sharp written exchanges between the ASU and staff within the Human Resources Directorate of the respondent, during a lengthy period prior to the date of the claimant’s dismissal. 

18.	As already mentioned above, the claimant was the webmaster of the Northern Ireland section of the ASU website.  That website had a number of links.  In the autumn of 2001, one of those links contained photographs and allegations to which Mr Paul McCormick took grave exception.  He regarded them as being both grossly inaccurate and highly defamatory of himself.  On the link, certain photographs compared him to Adolf Hitler and generally to the Nazis.  On that link, he was referred to as “The Great Exalted One”.  A photograph of the premises of the respondent also appeared there, with the words “Arbeit Macht Frei” and the words “Headquarters of our beloved service”.  

19.	The content of that link came to the attention of Mr McCormick at some stage during the autumn of 2001.  He brought that issue generally to the attention of the Board of the respondent.  He spoke about the matter in some detail with Professor Perrott, a non-executive member of the respondent’s Board.  When the ASU delegation came to meet the Board in October 2001, Professor Perrott questioned Mr Ray Carrick in considerable detail about matters relevant to the offending link.  The following month, Mr McCormick’s personal solicitors wrote to the ASU generally, and to several senior officers of that union (including the claimant), in relation to the relevant link.  In that correspondence, they threatened to sue the union and all of those officers.  During the course of that correspondence, the solicitors for Mr McCormick made it clear that they were aware of the claimant’s role as Assistant Branch Secretary, and of his role as Northern Ireland webmaster.  In a letter dated 14 November 2001, addressed to the claimant, Mr McCormick’s solicitors commented upon the relevant link’s messages in the following terms:

“These allegations are utterly baseless and grossly defamatory of our client.  They have been designed to destroy his integrity and thereby his ability to carry out his role as Chief Executive.  They have seriously damaged his reputation”.

	Mr McCormick continued to be Chief Executive of the respondent until long after the date on which the internal appellate disciplinary panel rejected the claimant’s appeal against his dismissal.  Right up to the time of his resignation, Mr McCormick was much affected by his upset at the content of the relevant link.

20.	For a lengthy period prior to the date of the claimant’s dismissal, much of the correspondence between the respondent and the ASU (including relatively routine correspondence) was sent to the ASU only after the respondent’s draft response had first been vetted by the respondent’s legal advisors.  

21.	On 22 March 2001, the claimant invoked the respondent’s staff grievance procedure.  Mrs Lorraine Gardner was involved in the processing of that grievance.  The claimant provided details of the grievance in the following terms:

“The grounds for this grievance is discrimination.  As a member of the Ambulance Service Union I wish to have the same rights and benefits as members of the NIAS, unfortunately the failure of the NIAS to recognise the ASU is denying me this right.  Officials from the ASU have been attempting to informally and amicably resolve this matter, unfortunately they have been refused any negotiation by the NIAS and indeed the NIAS insufficiently responded to resolve this matter.  I believe that by not affording me the same rights as my colleagues in other trade unions the NIAS are in contravention of Item 2 of the Joint Declaration of Protection.  Furthermore by denying these rights and therefore discriminating against me, I believe that Trust Officials are guilty of gross misconduct as set out in Item 3 of the Joint Declaration of Protection.  Therefore I feel that a formal NIAS grievance is the only internal option left to resolve this matter”.

22.	According to the case being put forward on behalf of the claimant, the senior officers of the ASU were all mystified as to the identity of the person or persons who were responsible for the infamous website link (the link which had caused such annoyance to Mr McCormick).  We find that very surprising.  It seems inherently unlikely that there could be such a broadly based lack of knowledge on such a controversial issue.  For the purpose of deciding the issues at this stage of the case, we have not had to resolve the question of whether or not there has been a lack of candour, on matters relating to the website, on the part of one or more of the witnesses on the claimant’s side of the case.  Nevertheless, in assessing the credibility of relevant witnesses on the claimant’s side of the case, we have taken account of the inherent improbability of the professed level of ignorance in relation to the relevant website link.

23.	The case being put forward on behalf of the respondent in these proceedings was that seven Officers of the respondent (Mr Terry Gorman, Mrs Gardner, both members of the initial disciplinary authority, and all the members of the internal appellate disciplinary authority) all discharged their respective roles, in connection with the claimant’s dismissal, while being in a state of ignorance on two matters.  First, we were told that none of them knew of the claimant’s prominent position in the affairs of the ASU.  Secondly, we were told that none of them knew of his involvement in the website controversy.  We consider it to be inherently improbable that all of the relevant witnesses would have been ignorant, throughout the relevant period, about both of these matters.  For the purpose of determining the issues which are addressed in this decision, we have not found it necessary to arrive at a definite view on the accuracy or inaccuracy of any evidence which has been presented to us in relation to these particular matters.  However, we have taken account of our doubts (in relation to that evidence) in assessing the credibility of the relevant witnesses generally.  

24.	Throughout the disciplinary process, attention focused upon an incident which occurred in the early hours of 16 February 2003 when the claimant and his ambulance crew mate, Ms Smylie, transported a patient by ambulance from Great Georges Street, Belfast to the Mater Hospital Accident and Emergency Department.  Throughout the internal disciplinary process, and in these proceedings, it was agreed between Management and the claimant that there had been a serious incident in the Accident and Emergency Department, during which there was physical contact between the claimant and the patient and during which there were verbal exchanges between the two of them.  These incidents were recorded on CCTV and were witnessed by a number of nursing and hospital security staff.

25.	The Night Manager of the Accident and Emergency Department, Sister Kate Arthurs, who had witnessed the incident, took serious exception to the claimant’s conduct during the incident and contacted the respondent’s Control Officer, Eastern Division (Mr Maurice Bingham), at 1.00am on the morning of 17 February 2003, to make a complaint about that conduct.  Soon after that telephone conversation, Mr Bingham rang Paul Meehan, the Divisional Training Officer for Eastern Division of the Ambulance Service, who was the Duty Officer on the night of the incident.  Mr Meehan was wakened out of his sleep to take the call.  As a result of that call, he made his way to the hospital shortly thereafter.  He then met Sr. Arthurs there.  It seems to be clear that, from the outset, the concern which was being expressed by Sr. Arthurs related to two issues.  First, she asserted that the claimant had used excessive force in dealing with the patient (who was a very difficult and aggressive patient); secondly, that he had verbally abused the patient.  From the outset, it was clear that there was corroboration, in some important respects, in respect of Sr. Arthur’s version of events, from other hospital staff who had witnessed the incident.

26.	On 19 February 2003, Ms Angela Mullin, the Clinical Services Manager of the Mater Hospital confirmed the complaint which had already been informally made by Sr. Arthurs.  Ms Regina Thompson, the respondent’s Complaints Manager, recorded details of Ms Mullin’s complaint in the following terms:

“On 15/02/03 (midnight) ambulance crew (1 male J. Emerson and 1 female) brought a female patient into A&E department of Mater Hospital.  Patient came in walking.  At one stage the patient lay on the floor, then stood up – she was aggressive to ambulanceman and she threw her jacket at him, she gave him verbal abuse.  The ambulanceman called her a “slut”.  Ambulanceman threw jacket back at patient and she continued to be aggressive.  Ambulanceman pushed patient with both of his hands and she fell to the ground and banged her head on the floor and as a result of this she became unconscious for a few seconds.  The Night Manager and Night Sister are witnesses to this, also there is video evidence.  The Night Manager called for the ambulance duty Manager Paul Meekin”.

27.	The respondent quickly decided to commence a disciplinary investigation, for the purpose of deciding whether disciplinary charges were warranted.  The allegations which had been made, by Sr. Arthurs and by others, were clearly serious allegations, in view of the post which the claimant held.  It was obvious that these allegations were coming from apparently credible sources.  In the circumstances, from the beginning of the investigation, it would have been obvious to any observer that formal disciplinary charges were an inevitability, unless there was some explanation which would clearly and simply show that the complaints were being made in bad faith, or that they were based on some fundamental misunderstanding 

of what had actually occurred.  From early on in the investigation, it was obvious that no explanation of that type would be available.  Therefore, the respondent was faced with a situation in which there was a sharp conflict between the claimant’s assessment of relevant events and the view of those events which was being put forward by hospital security staff and nursing staff.  Therefore, within a week of the incident, there was no room for any real doubt on the question of whether the matter could, should and would be pursued to a disciplinary hearing.

28.	Ultimately, during March 2003, the claimant was informed that he was required to attend a disciplinary hearing for the purpose of considering the following allegations:

“In the course of your employment, at approximately 01.00 hrs on Sunday 16 February 2003, in the Accident and Emergency Department of the Mater Infirmourum Hospital, you verbally abused a female patient and used excessive physical force on same patient resulting in her falling to the ground and being rendered motionless.  By your actions you are in direct contravention of Section 2.1 of the NIAS Basic Training Manual ”Code of Conduct”; Section 18.6 of the NIAS Basic Training Manual “Managing Violence” and the NIAS “Policy on Violence to Staff” and if proven you may be found guilty of gross misconduct under the Trust’s Disciplinary Procedure”.

29.	In essence, as both representatives recognised in these proceedings, there were in reality only two disciplinary charges.  First, that the claimant had verbally abused the patient.  Secondly, that the claimant had used excessive physical force in respect of that patient.

30.	Section 2.1 of the NIAS Basic Training Manual “Code of Conduct” advised members of ambulance crews that they should never be bad tempered and they should always be respectful towards patients.  Section 18.6 of the same document provides guidance as to how to manage a violent situation.  According to Section 18.6, ambulance crews should not allow their actions to demonstrate any annoyance on their part or to suggest any lack of concern on their part.  Furthermore, the same Section advises that ambulance crews should not be drawn into a heated debate.

31.	The disciplinary hearing took place on Thursday 27 March 2003.  The disciplinary panel hearing consisted of Mr Brian McNeill, Head of Training and Quality Assurance of the respondent (who was Chair of the panel) and Mr Paul Nicholson, the respondent’s Assistant Director of Finance.  Mr Gorman and Mrs Gardner were also present on behalf of the respondent.  In effect, Mr Gorman and Mrs Gardner constituted the presenting team on behalf of Management.  The claimant attended and was represented by Mr Rice.  Mr Dennis Elliott of the ASU attended as an observer.  That panel concluded that both of the charges against the claimant were well founded and that he should be dismissed.  According to the panel’s decision, as set out in Mr McNeill’s letter of 3 April 2003 to the claimant:

“The Panel have determined that not only were you verbally abusive to the patient but that you physically assaulted the patient and therefore your actions of that evening constitute Gross Misconduct under the Northern Ireland Ambulance Service Trust … Disciplinary Procedure”.

32.	The claimant appealed against that decision in a letter dated 3 April 2006, addressed to Ms Roisin O’Hara, the respondent’s Director of Human Resources.  In his letter, he set out specific grounds of appeal in the following terms:

“My grounds for appeal are a: that I was defending myself from a violent patient, and b: I believe that the outcome of my disciplinary had been decided upon before the completion of an investigation, therefore neither my investigation nor disciplinary was fair or impartial”.

Nevertheless, the actual internal disciplinary appeal was an entire re-hearing of all the matters which had been considered by the initial internal disciplinary panel.

33.	The claimant’s letter of appeal was being copied to Mr Rice, Mr Dempster and Mr Elliott of the ASU, and was explicitly marked accordingly.  

34.	The internal appeal was heard by a panel consisting of Ms O’Hara (as Chair), Dr David McManus and Ms Margie Greer.  The Appeals Panel found only one of the charges proven, namely the charge that the claimant had verbally abused the patient.  However, the Appeals Panel nevertheless decided that the claimant’s dismissal should be confirmed.

35.	The letter setting out the charges (which was signed by Lorraine Gardner and which sent to the claimant in mid-March) is ostensibly dated 1 March 2003.  Mrs Gardner told us that this was a typographical error and that the letter was not completed until mid-March.  We accept that this evidence was truthful.  In deciding that factual issue, we have paid particular attention to two factors.  First, we closely observed Mrs Gardiner’s demeanour and manner of giving evidence, in connection with that aspect of her evidence.  Secondly, we note that 1 March 2003 was a Saturday; it is rather unlikely that a letter of this type would have been done on a Saturday (as distinct from being done on a weekday).

36.	According to the claimant, the reason for dismissal is connected with his trade union activities.  According to the respondent, the only reason for the claimant’s dismissal is his misconduct on 16 February 2003 (which, the respondent says, they considered in the light of the claimant’s subsequent attitude in relation to that misconduct).

37.	Having considered the contentions of the parties and all the evidence in this case, we are satisfied that the principal reason for the dismissal of the claimant was the misconduct on the relevant night at the Mater Hospital.  Therefore, it follows that we have determined that the claimant’s trade union membership or activities were not the principal reason for the dismissal.

38.	In arriving at the factual conclusions set out in the last paragraph above, we have taken full account of all the evidence in the case, and of all of our primary findings of fact.  We have also taken full account of the demeanour and manner of giving evidence of each witness in general.  However, we have paid particular attention to the demeanour and manner of giving evidence, in relation to this part of the case, of each of the relevant decision-makers.  All of the five decision-makers told us, in the course of evidence on oath, that misconduct was the only reason for dismissal.  We have noted that it is inherently less likely that two people would perjure themselves (as distinct from one person perjuring himself) and that it is inherently less likely that three people would perjure themselves (as distinct from one person perjuring 

himself or herself).  We also take account of the fact that the claimant was guilty of serious misconduct.  (The latter matter cannot be determinative in resolving this particular factual issue.  Nevertheless, it is a matter which we can take into account in assessing the credibility issues in respect of the relevant evidence of the decision-makers).  In assessing the relevant evidence, we have not failed to take account of the doubts which we have expressed at paragraph 23 above.  Having considered all those matters, we were satisfied as to the accuracy of the reasons given by the relevant decision-makers for the decision to dismiss the claimant (both at the initial internal disciplinary stage and at the appellate internal disciplinary stage).  

39.	The respondent’s Disciplinary Procedure contains provision as follows.  At paragraph 1, the Procedure states that it is designed to help and encourage all employees to achieve and maintain standards of conduct and job performance.  In the same paragraph, it is also made clear that the aims of the Procedure include the aim of ensuring consistent and fair treatment for all, and the aim of ensuring justice for individual employees.  Paragraph 3 states some general principles.  One of the general principles there stated is as follows:

“(d)	No employee will be dismissed for a first breach of discipline except in the case of gross misconduct where the penalty may be dismissal”.

40.	Procedural matters relating to any appeal are addressed at paragraph 13 of the Procedure.  Paragraph 13 provides that the Chairperson of the Appeal Panel is to conduct the hearing.  Paragraph 13 also provides as follows:
		
“The employee and their representative have the right to be present during the Appeal Hearing of all the evidence put to the Appeal Panel…”

And:
		
“The employee shall have full opportunity personally, or through a representative, to respond and to question any management witness or statements submitted”

And:
	
“The Appeal Panel shall have the right to recall any witnesses but if this is the case, both the employee and his/her representative and the Presenting Officer shall have a right to be present”.

41.	Appendix 2b of the Procedure gives some examples of misconduct which may result in the imposition of disciplinary sanctions, although the Appendix itself points out that:

“… it is impossible to detail every circumstance which may arise where disciplinary action is appropriate…”

42.	That Appendix also includes an illustrative list of the types of misconduct which will constitute gross misconduct.  The items there listed include theft, fraud, assault, disclosure of confidential information, wilful misbehaviour, and intimidation (whether of another employee or a member of the public).  According to the Appendix, it complements the Code of Conduct as set out in the Ambulance Basic Training 

Manual.  Reference has already been made to that Conduct Code (at paragraph 30 above).

43.	In a lengthy letter dated 12 June 2003 (in which she announced and explained the Appeal Panel’s decision), Ms O’Hara set out the matters taken into account by the Appeal Panel in addressing the issues which were raised in the course of the appeal.  We are satisfied that all of the issues listed in that letter were issues which were in fact taken into account by the Appeal Panel.  

44.	During the course of the internal disciplinary hearings, and in the course of the present proceedings, it was suggested on behalf of the claimant that he received inadequate training and that this inadequacy of training had some bearing on his conduct during the incident on 16 February 2003.  In our view, he did have adequate training.  Furthermore, again in our view, one does not need to be trained to know, as a member of an ambulance crew, that it is wrong and unacceptable to call a patient a slut.

45.	In the letter of 12 June 2003, Ms O’Hara also stated the following:

“In consideration of the sanction to be imposed the panel also considered a further factor in that you showed little or no remorse for your actions during the appeal hearing and appeared to take little or no responsibility for your own actions”.

46.	We are satisfied that this view was genuinely held by the Appeal Panel and that they had good grounds for taking that view.  Furthermore, we are satisfied that this view is in line with the reality.  In arriving at the latter factual conclusion, we have taken full account of all the evidence available to us.  However, we have paid particular attention to the following:

(1)	In relation to the issue of whether there was remorse, both parties accept that the notes of the internal appeal hearing at page 648 of the Bundle are particularly important.  In our view, it is clear that the claimant’s responses (which are accurately noted at that page) refer not just to jacket flinging, but also to verbal abuse.  (The relevant question was “How would you handle verbal abuse, jacket flinging” and the relevant answer was “I would act in the way any training I had received had indicated, would still lift my hands if someone came at me”).  

(2)	In the submissions which were made on the claimant’s behalf, at both stages of the internal disciplinary process, there is no indication of any substantial remorse or any substantial acceptance of personal responsibility, as regards the verbal abuse.

(3)	On 28 April 2003, the claimant signed his own Originating Application in these proceedings.  In his statement describing his complaint (at paragraph 13 of that Application) there is no indication that he accepts that he has been guilty of any wrongdoing, or that he accepts that there is a need to refrain from similar behaviour in the future.  Again, he complains of inadequate training in that paragraph. 

(4)	In the course of the claimant’s lengthy oral testimony in these proceedings he showed little or no remorse for his actions and appeared to take little or no personal responsibility in connection with the verbal abuse.  We think that our view of that aspect of his evidence enhances the credibility of the suggestion now being made (on behalf of the respondent) that little or no remorse had been shown, and little or no personal responsibility had been accepted, in the course of the internal disciplinary process.

(5)	At page 649 of the Bundle, there is an accurate note of comments which the claimant made, during the course of the internal appeal hearing, on the question of whether calling a patient a slut is appropriate.  Mr Gorman asked the claimant whether it was acceptable to call a patient a slut.  Instead of simply answering “no”, the claimant used evasive tactics.  First, he said that the question of whether he called her a slut was all supposition (even though he will have known at that stage that all of the witnesses at the initial internal disciplinary hearing had confirmed that he had done so).  Secondly, he accused the Presenting Officer of coercing and badgering him.  It was only when the Chairperson of the Panel intervened, by asking:  “Do you feel slut is appropriate language?” that he answered “No, I don’t”.  In our view, that exchange indicates a minimalist approach on the part of the claimant to the remorse and personal responsibility issues.  

47.	We think it is clear from the appeal panel’s decision that they concluded that the claimant lost his temper and that this was a major reason for the abusive language.  They had good grounds for coming to that conclusion.  We ourselves believe that that is probably the true position in reality.  

48.	The claimant told both of the internal disciplinary authorities that he could not remember calling the patient a slut.  Mr Mulqueen (for the respondent) told us that both of the internal disciplinary authorities acted on the premise that this was a genuine lack of recollection on the claimant’s part.  Accordingly, it is proper that we should make that assumption in the claimant’s favour also.

49.	As is clear from Ms O’Hara’s letter of 12 June 2003, the appeal panel accepted that the background to the claimant’s misconduct was that he was faced with a verbally abusive and aggressive patient who was very provocative.  Apart from that background, and the continuing complaints about the alleged lack of training, the claimant never provided the internal disciplinary authorities with any explanation for the relevant misbehaviour on his part, or with any basis for believing that his abusive conduct of 16 February 2003 would not be repeated in the event of a similar situation occurring in future. 

50.	The claimant was not charged with any criminal offence arising out of the incident on 16 February 2003.  However the patient who was involved in that incident was convicted at the Magistrates Court on 17 April 2003 of unlawfully assaulting the claimant; a “Probation Order” for 12 months was imposed.

51.	Mr Charles Kelly held a supervisory position within the Ambulance Service.  He had never been a member of the ASU but was at one time the Branch Secretary of the Transport and General Workers Union (a union which is recognised by the respondent for collective bargaining purposes).  He had been subjected to disciplinary action on two separate occasions prior to the date of confirmation of the claimant’s own dismissal.  

52.	In May 1999, he faced 13 separate disciplinary charges arising out of an incident which occurred in February 1999.  Eight of those charges were upheld by the disciplinary panel.  

53.	The charges which were upheld were as follows:

“5.	You admitted that on 18 February 1999 you went to Mrs [         ]’s home without permission whilst on duty.  

6.	By your actions in 5 above, you made inappropriate use of an Ambulance Service vehicle, petrol and time.  
...

8.	By your actions in 5 above, you placed the health and safety of yourself, your partner and patients at risk.  

9.	By your actions in 5 above, as a Leading Ambulance Person, you set a bad example to your trainee crewmate.

10.	By your actions in 5 above, [       ] alleges that you denigrated her.

11.	By your actions in 1, 2 and 5 above, you weakened Mrs [         ]’s confidence in the Ambulance Service.

12.	By your actions you have breached the Harassment Policy.  

13.	By your actions you have breached the Code of Conduct”.

Charge 5 specified a single act of misconduct: that Mr Kelly, on 18 February 1999, went to the home of a patient without permission while on duty.  Charges 6, 8, 9, 10 and 11 were, in reality, merely commentaries on the consequences, context and implications of the single act of misconduct which was the subject-matter of Charge 5.  

54.	The upholding of Charge 12 seems to be based on the following reasoning (as set out in the disciplinary panel chairman’s letter of 7 May 1999 to Mr Kelly):

“To return to Mrs [       ]’s house was at best unwise and placed yourself and your colleague in a vulnerable position, open to misinterpretation.  The Panel finds that your actions are in breach of the Harassment Policy, and therefore upholds this allegation”.

55.	The upholding of Charge 13 seems to be based mainly on the view that Mr Kelly gave ground for complaint or suspicion “that the trust in you is misplaced” by making the unauthorised visit to the house of Mrs [         ].  

56.	The disciplinary panel stated that it considered Charge 12 to be the most serious of the charges which it had upheld.  It concluded that, in carrying out the relevant misconduct, Mr Kelly had committed an offence of Gross Misconduct within the meaning of the respondent’s Disciplinary Procedure.  However, the panel considered his good record and length of service as mitigating factors and decided to issue a Final Written Warning, which was to be on his record for two years 

effective from 5 May 1999.  As soon as that written warning was issued, the 1999 disciplinary proceedings were at an end.  

57.	However, there was a sequel to the 1999 disciplinary proceedings.  On 12 February 2002, the patient who had received the inappropriate 18 February 1999 visit from Mr Kelly began proceedings in the High Court, against Mr Kelly and against the respondent.  In those proceedings, she alleged assault, battery and trespass to the person by Mr Kelly while the latter was acted as a servant and agent of the Ambulance Service.  Her claim was that she developed a post-traumatic stress disorder as a result of his conduct.  The conduct was alleged to have taken place at her home.  According to her version of events, she had attended hospital earlier in the evening of 18 February 1999 with a friend; Mr Kelly ascertained her address and called at her home later that evening when he behaved in a way that was described by the patient’s counsel as entirely inappropriate.  Mr Grainger (on behalf of the claimant in these proceedings) attached great importance to the existence of the High Court proceedings against Mr Kelly and NIAS.  However, the relevant proceedings were only begun after the 1999 disciplinary proceedings had already been concluded.

58.	Mr Kelly was again the subject of disciplinary action in January 2003.  This arose out of an incident which occurred on 7 October 2002.  On that occasion, there were two allegations against Mr Kelly and the disciplinary panel on that occasion regarded both allegations as being substantiated.  Allegation 1 was as follows:

“That on 7 October 2002 you inappropriately made a telephone call to Miss 
[   ] (a patient whose home you had visited on 30 September 2002 in response to a request for an ambulance).  In so doing, you abused your position of trust as an employee of the Northern Ireland Ambulance Service.”

		Allegation 2 was as follows:

“That the alleged nature of this telephone call was such that it resulted in Miss [      ] feeling very vulnerable and frightened and as such had the potential to weaken her trust and confidence in the Ambulance Service”.

59.	In accepting that both allegations were substantiated, the disciplinary panel also accepted evidence that the content of the relevant telephone call had sexual connotations.

60.	For the October 2002 misconduct, the panel decided that Mr Kelly should receive a two year final written warning, that he should be transferred from the station in which he was then based, and that he should be down-graded from his post as Paramedic Supervisor to the post of Paramedic.  He was also told that, in future, he was not to make any outside contact with any patient of the Ambulance Service without the express prior permission of his Station Officer.

61.	In deciding on the outcome of the claimant’s internal appeal in the present case, the Appeal Panel took no account of the outcomes of the Charles Kelly disciplinary cases.  (All the Appeal Panel gave evidence to us to that effect, and we accept the accuracy of that evidence).

62.	Mr Grainger followed a similar approach with each of the Appeal Panel members.  Each was invited to consider the outcomes of the Kelly disciplinary cases.  Having done so, each was asked whether he or she considered the seriousness of the Charles Kelly misconduct to be greater than, less than, or equal to the seriousness of the misconduct proven against the claimant in the present case.  In response, each Appeal Member told us that he or she considered the Charles Kelly misconduct to be on a par with the misconduct proven against the claimant in the present case.  

63.	The Employment Relations (NI) Order 1999, at Article 12, confers rights on workers, in the context of disciplinary proceedings, to be represented by a trade union representative of the worker’s own choice.  Accordingly, because of the requirements of Article 12, the respondent had no option but to accept that the claimant would be represented by a representative from the ASU.

64.	At the Appeal Hearing, the Management Side was, from the outset, simultaneously represented by two persons (Mr Gorman and Ms Gardner).  (That fact was noted at page 2 of Ms O’Hara’s letter to the claimant of 12 June 2003).  During the Appeal Hearing, only Mr Gorman examined witnesses.  However, Mrs Gardner, on a number of occasions, made comments, observations and submissions, without any suggestion being made, by or on behalf of the Appeal Panel, that such interventions were illegitimate.  

65.	The claimant’s side of the appeal case was treated differently.  From the outset, it was made clear that there could only be one representative on the claimant’s side. It is true that, ultimately, Mr Carrick was allowed to make submissions on behalf of the claimant.  However, that concession was made grudgingly.  It was made only near the end of the hearing.  Furthermore, the concession had the effect of allowing Mr Carrick to substitute himself as representative (in place of Mr Rice) as distinct from allowing him to be a joint representative alongside Mr Rice (in the way in which Mrs Gardner had been allowed to be a joint representative alongside Mr Gorman).  The respondent’s own notes of the appeal hearing accurately described the position (at page 631 of the Bundle).  Those notes show that, soon after the beginning of the appeal hearing, Mr Rice pointed out to the Appeal Panel that Management was being allowed to have an assistant presenter, and that Staff Side was not being allowed any such assistance.  

66.	As a result of the rulings which were made in relation to the number of representatives on each side, the impression was created that Management Side was being treated with greater indulgence than Staff Side.

67.	Ms Joanna Smylie had been the claimant’s crewmate on the night of the incident which gave rise to the disciplinary proceedings.  According to the statement which she had submitted in the course of the disciplinary investigation process, she had evidence to give which was not helpful to the claimant.  This was obviously an embarrassing and difficult situation for Ms Smylie. Her evidence to the initial disciplinary hearing had been given without incident.  However, an incident occurred during her evidence to the Appeal Panel.  Mr Rice, as representative for the claimant, was asking Ms Smylie whether she felt under pressure at any time during the investigation interviews.  Ms Smylie then appeared to be upset, asked for “time out” and left the room.  Ms O’Hara declined to allow Mr Rice to continue with that line of questioning.  Instead, after a recess and after consulting with the representatives, the Panel decided to ask Ms Smylie certain specified questions 

(which were notified to the representatives in advance) in the absence of the representatives.  

68.	The following were “specified” questions: 

(1)	Was Ms Smylie coerced in relation to her witness statement?  

(2)	Was she asked to add anything to her statement that didn’t occur?  

(3)	Was the statement an accurate reflection of what she saw on the night in question?  

69.	Those questions were posed to Ms Smylie in the absence of the representatives.  She answered the first two questions in the negative and she gave an affirmative action to the third of those questions.  However, while she was giving evidence during that private session, she also told the Appeal Panel that she had felt bullied in connection with the investigatory interview with Mr Gorman.  The latter remarks were not reported to the representatives when the Appeal Panel resumed the hearing in the presence of the representatives.  If that information had been made available by the Panel to Mr Rice, he would undoubtedly have wished to pursue that matter in the course of his questioning of Ms Smylie.

70.	There is some conflict of evidence between the parties on this incident.  First, it is alleged that Mr Rice had been asking his questions aggressively, thus causing upset to Ms Smylie.  We reject that suggestion.  We are satisfied that he was asking appropriate questions in an appropriate manner.  In arriving at that conclusion we are much influenced by the fact that, despite the extensive note-taking during the internal appeal hearing, there is no note that Mr Rice was reprimanded in any way, in that connection, at the time.  Secondly, there is also a conflict between the parties on the question of whether Mr Rice agreed to Ms O’Hara’s departure from the open procedures called for by the terms of the respondent’s Disciplinary Procedure.  We do not need to resolve that conflict for the purpose of resolving the issues which arise in this part of the case.  It is sufficient, in the present context, that we are convinced that Ms O’Hara put unwarranted pressure upon Mr Rice to refrain from personally asking Ms Smylie some legitimate questions.  There is no dispute between the parties that Ms Smylie referred to feeling bullied when she met the Panel during the private session, and that this comment was not reported back to the representatives when they returned to the room.  Ms O’Hara did not make adequate enquiries, with a view to ascertaining the reason why Ms Smylie was upset.  If she had made such enquiries, she would probably have been informed that Ms Smylie’s sense of upset had nothing to do with Mr Rice’s actions in his capacity as the claimant’s representative.  (During her evidence to this Tribunal, Ms Smylie made it clear that her sense of upset during the internal appeal hearing had nothing to do with Mr Rice’s actions or omissions).

71.	Mrs Gardiner had a variety of roles:

(1)	She had a substantial role (either personally or through her assistant, Caroline Logan) in choosing the members of the internal disciplinary panels, both at initial stage and at appellate stage.  

(2)	When it was decided that Mr Paul Nicholson should be a member of the initial disciplinary authority in the claimant’s case, she provided him with training as to how he should conduct himself in that role.  

(3)	When the initial disciplinary hearing was imminent, she personally notified the relevant Panel members of the fact that the power of dismissal had been delegated to them.  

(4)	She operated as part of a two member Management Side “prosecution” team, during, and in connection with, both of the internal disciplinary hearings. 

(5)	She composed the first draft of the Appeal Panel’s decision letter (in the light of a conversation which she had had with Ms O’Hara, during which the latter had informed Ms Gardiner of the Appeal Panel’s decision and reasoning).

72.	Although Mr Gorman was a relatively senior Officer of the Ambulance Service, he was very inexperienced in the context of investigatory and disciplinary processes, whereas Ms Gardiner was thoroughly experienced in those areas of activity.  Therefore, she had considerable influence over the manner in which Mr Gorman presented the Management side of the disciplinary case.  

73.	For the purpose of deciding the extent of any “conduct” deductions from any compensation which might otherwise be payable, it is necessary for us to arrive at our own factual conclusions on the question of what really happened.  We can summarise some of those conclusions in the following terms.  On the date of the relevant incident, the claimant had carried out many years of service as an ambulance crew member, and he had an exemplary record.  He was subjected to considerable and unwarranted provocation by a particular patient, who was aggressive, difficult and abusive.  Under that provocation, he lost his temper.  He used abusive language to the patient.  In using that language, he was treating her in a degrading and humiliating manner.  He did this in a hospital, in the presence of several hospital staff.  He cannot remember the relevant act of misconduct.  However, by the time of the conclusion of the initial disciplinary hearing, he knew, or should have known, that he did in fact engage in that misconduct.  Nevertheless, throughout the investigation and disciplinary processes, he expressed little or no remorse for the misconduct and appeared to take little or no responsibility for his actions in that regard.  Throughout those processes, he never offered a valid explanation for that conduct, or provided the respondent with any basis to be reassured that he would not misbehave in a similar manner (a manner similar to the manner in which he behaved on 16 February 2003) in the event of a similar situation occurring in future.  

74.	The claimant was employed as a member of an ambulance crew.  It would not have been a practicable and proportionate step for the respondent to re-allocate the claimant permanently to duties which would have prevented him from coming into regular contact with patients.  

The political discrimination claim 

75.	Article 19 of the 1998 Order makes it unlawful for an employer to discriminate against an employee by dismissing that employee or subjecting the employee to any other detriment.  

76.	For the purposes of the 1998 Order, “discrimination” includes “…discrimination on the ground of religious belief or political opinion…” (See Article 3(1)(a) of the Order).

77.	In these proceedings, the claimant asserts that he has been subjected to unlawful discrimination (in connection with his dismissal and in connection with the disciplinary process leading up to that dismissal) on the ground of political opinion, contrary to Article 19 of the 1998 Order.  His representative has made it clear that, in this case, the relevant political opinion consists of opinions held by the claimant.

78.	The relevant “political opinion” has been defined on behalf of the claimant in replies which were provided on his behalf to an Order for Further and Better Particulars.  The matter was addressed at paragraph 3 of those replies, in the following terms:

“3. 	The applicant’s political opinion is his trade union beliefs and membership, namely, the Ambulance Service Union.”

79.	At paragraph 75 of the claimant’s Submission (see paragraph 8 above), the relevant “political opinion” is described in the following terms:

“The Claimant’s political opinion is his trade union beliefs and membership of the Ambulance Service Union”.

80.	At paragraph 84 of the claimant’s Submission, more detail is provided in relation to the relevant “political opinion”:

“84.  	The discrimination alleged in the present case does stem from the Claimant’s association with or lack of association with “a political party, philosophy or ideology” namely the organisation of employees and trade unions and the representation of their interests in collective bargaining with employers…”

The law on the political opinion issue  

81.	The definition of political discrimination was originally to be found in Section 16(1) of the Fair Employment (NI) Act 1976.  That definition has been carried forward, without amendment, into Article 3(1) of the 1998 Order.  

82.	As is made clear in McKay v Northern Ireland Public Service Alliance [1994] NI 103, the 1976 Act was, at least in some respects, inspired by the Report of the Van Straubenzee Working Party.  The main brief of the Working Party was to devise mechanisms for addressing the problems of religious discrimination in the context of employment in the public service in Northern Ireland.  In that context, the Working Party concluded that it was necessary, because of the close connection between politics and religion in Northern Ireland, to include prohibitions against political discrimination, as a means of ensuring that political discrimination could not be used as an avoidance mechanism in relation to religious discrimination prohibitions.  (See McKay at 109, 110).

83.	However, in interpreting the 1998 Order, this Tribunal’s primary task is to discover the intention of the legislator, as expressed in the legislation itself.  Relevant decisions of the courts are the best guide to the precise nature of that intention.  

84.	In the present context, we have been referred to three separate decisions.  The first is the McKay judgment itself.  (McKay was a Court of Appeal decision).  The second is the decision of the Court of Appeal in Gill v NICEM [2001] NIJB 299.  We have also been referred to the decision of the Fair Employment Tribunal in Maurice Neill v Belfast Telegraph Newspapers Ltd [Ref no. 554/00 FET, unreported, promulgated on 4 July 2002].  

85.	Of the two Court of Appeal cases, NICEM is the most relevant.  

86.	In the McKay case, the court was mainly concerned with question 4 of the case stated, which was in the following terms:

“(4)	Did the tribunal err in law in concluding that discrimination on the grounds of political opinion was unlawful if, and only if, such political opinion displayed some connection or correlation between religion and politics in Northern Ireland”.

Accordingly, McKay was centrally concerned with issues which are materially different from the issue in the present case.

87.	 In McKay, the Court of Appeal decided that discrimination on the ground of political opinion could be unlawful even if the relevant political opinion displayed no connection or correlation between religion and politics in Northern Ireland. According to the court in McKay, the prohibition on discrimination of the ground of political opinion was a free-standing prohibition, which was not in any way dependant upon the 1976 Act’s prohibition of religious discrimination.  

88.	The context of NICEM was that Mr Gill had unsuccessfully applied for an appointment to the post of co-ordinator with the Northern Ireland Council for Ethnic Minorities.  He claimed that, in the recruitment process, NICEM had discriminated against him because of his association with “anti-racist” views (as distinct from the “culturally sensitive” views which he considered to be the predominant approach within NICEM).  He claimed that his “anti-racist” approach constituted a political opinion for the purposes of the fair employment legislation.  The Court of Appeal rejected that proposition.  The reasons for that rejection appear from the judgment of Carswell LCJ, (NICEM at pages 311 and 312):

	“It seems to us that the type of political opinion envisaged by the fair employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland but is not confined to that political identity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy, or ideology and which may predispose the discriminator against him.  For that reason, we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy”.

89.	It seems to us to be clear that, in that passage, the adjective “political” describes “philosophy” and “ideology”, as well as describing “party”.  So Carswell LCJ was referring to a political party, a political philosophy, or a political ideology.  From that passage, the following propositions emerged:

(1)	The type of political opinion envisaged by the fair employment legislation is that which relates to one of the opposing ways of conducting the government of the state (whether at national, regional or local level). 

(2)	The object of the legislation is to prevent discrimination against a person which may stem from that person’s association with a political party, with a political philosophy, or with a political ideology.  (That is why the court considered that the type of political opinion in question has to relate to the conduct of the government of the state or matters of “public policy”).

90.	Furthermore, the court in NICEM (at page 312) also stressed that the concept of “political opinion”, for the purposes of the fair employment legislation, may be narrower than the grammatical meaning of “political opinion”:

“It might be possible to describe [the difference between an anti-racist approach and a culturally sensitive approach] as constituting a divergence of political opinion, but we do not think that it is the type of political opinion intended by Parliament in enacting the fair employment legislation”. 

91.	In McKay, the claimant was a member of the Northern Ireland Public Service Alliance (a public sector trade union).  He was a supporter of a group within that union know as the Broad Left.  He claimed that, in the course of a recruitment process for a trade union post, the union discriminated against him because of his membership of the Broad Left.  He claimed that this discrimination constituted political discrimination within the meaning of the fair employment legislation.  One of the questions posed in the Fair Employment Tribunal’s case stated in McKay was the following:

“(5)	Did the tribunal err in law in concluding that it had no jurisdiction to consider the complaint [of the claimant] on the facts found.”

The Court of Appeal answered that question in the affirmative.  Two points have to be made in this connection.  First, there was no specific discussion in McKay as to the reasons for that particular determination.  Secondly, according to evidence accepted by the FET in McKay (see McKay at 107), the policies of the Broad Left included policies such as the following:

“NIPSA should not only discuss political issues, it should join with the rest of the trade union movement in building a trade union based political party which can represent the interests of our members in the working class as a whole”. 

Accordingly, in McKay, the relevant opinions (the policies of the Broad Left) included opinions which related to one of the opposing ways of conducting the government of the state

92. 	In the Neill case, the Fair Employment Tribunal had to decide, as a preliminary issue, whether the relevant political opinion of the claimant constituted a political opinion within the meaning of the fair employment legislation.  For the purposes of Neill, the relevant political opinion had been identified in a reply to a Notice for Particulars dated 21 December 2001, in which the claimant stated:

“The applicant as an active trade union member believes as a political opinion that workers should have the right to collectively organise in the work-place to promote their collective rights and interests.  In particular the applicant believes as a political opinion that workers representatives should be able to engage in collective bargaining with management to prompt workers rights and interests”.

In our view, in that passage the claimant was referring to opinions about the legal rights which workers should have in relation to collective organisation and in relation to engaging in collective bargaining.  A view as to the legal rights which should be available to workers is a view as to one of the opposing ways of conducting the government of the state.  Therefore, in our respectful view, the Tribunal’s decision in Neill (that the relevant opinion was a political opinion for the purposes of the fair employment legislation) was a determination which is entirely in line with the principles which have emerged from NICEM, as already described by us above.  In our view, the Tribunal in Neill was not purporting to expand the scope of the principles which had emerged from the McKay and NICEM.

Our conclusions on the political opinion issue

93.	We can now apply those legal principles to the facts of this case.    

94.	There obviously are differences between the factual context of NICEM case and the factual context of the present case.  However there are striking parallels also:

(1)	The claimant in the NICEM case (Mr Gill) was concerned about racial discrimination, which has been the subject of considerable public concern in Northern Ireland and is a problem which has received substantial attention from the legislature.  The claimant in the present case was concerned about the exploitation of workers, which has also been the source of considerable public concern in Northern Ireland and which has also received substantial attention from the legislature.  

(2)	Mr Gill had a particular view as to how the relevant problem (the problem of racial discrimination, in his situation) could best be addressed.  He favoured dealing with that problem by taking an “anti-racist” approach (as distinct from a “culturally sensitive” approach).  He intended to deploy that approach in the organisation (NICEM) in which he hoped to work.  The claimant in the present case had a particular view as to how the problem which was relevant in his context (the exploitation of workers) could best be addressed.  He favoured dealing with that problem by combining workers within a particular trade union (the ASU) which would specialize in defending the interests of ambulance workers, and which would take a robust approach to industrial relations matters.  He intended to deploy his preferred approach in the organisation (the NIAS) in which he was already working.

95.	In NICEM, the Court of Appeal took the view that Mr Gill’s “anti-racist” approach did not constitute one of the types of political opinion contemplated by Parliament in enacting the fair employment legislation.  In our view, there is a parallel with the relevant opinions of the claimant in the present proceedings.  We are satisfied that the latter opinions are similar to Mr Gill’s “anti-racist” approach, in that they do not constitute opinions relating to one of the opposing ways of conducting the 

government of the state (whether at central, regional or local level).  Instead, the relevant opinions of the claimant in this case are opinions about issues relevant to the proper governance and policies of trade unions.

96.	Therefore, against that background, and for those reasons, we are satisfied that the relevant opinions in this case are not within the scope of the concept of a political opinion within the meaning of the fair employment legislation.  

97.	Accordingly, any less favourable treatment accorded to the claimant by reason of the relevant opinions would not constitute “discrimination” within the meaning of the 1998 Order.

98.	We note that the ASU considers that it is better for a trade union not to endorse a political point of view or to support any particular political party.  We accept that the claimant endorses that position.  However, nobody has suggested that those views, on the part of ASU, or on the part of the claimant himself, made any difference to the manner in which he was treated.  In any event, those views are not views as to one of the opposing ways of conducting the government of the state, nor are they views as to matters of public policy.   Instead, they are views about issues relevant to the proper governance and policies of trade unions.

99.	Against that background, and for those reasons, we conclude that the claimant’s complaint of unlawful political discrimination is not well-founded.

The unfair dismissal liability issues

100.	On the question of whether or not the dismissal was fair or unfair, there are two main issues.  The first is whether the respondent has shown that the reason asserted by the respondent as being the reason for dismissal (the claimant’s conduct on 16 February 2003) was in fact the principal reason for the dismissal.  (See Article 130(1) of the1996 Order). Our findings of fact (as set out at paragraph 37 above) resolve that issue in favour of the respondent.  Therefore, we must move on to the second issue, which is whether or not the dismissal was actually fair or unfair within the meaning of Article 130(4) of the 1996 Order.  

101.	It is convenient at this stage to refer to the provisions of Article 130(4) in detail.  Article 130(4) provides that:

“…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”.

102.	This second issue (the issue of whether the dismissal is actually fair or unfair) involves two subsidiary questions:

(1)	Was the dismissal unfair because of any procedural shortcomings?

(2)	By imposing the sanction of dismissal, in the circumstances of this case, did the employer act within, or outside, the range of reasonable responses?

103.	On the latter sub-question, two matters have to be addressed:

(1)	Was dismissal for a first offence, in the circumstances, such a disproportionate sanction that dismissal was outside the range of reasonable responses?

(2)	In the context of the question of whether dismissal was within the range of reasonable responses, what are the implications of the outcomes of the Charles Kelly disciplinary proceedings (as outlined above)?

The arguments on the unfair dismissal liability issues

104.	As already noted above, arguments of the parties on the various issues are set out in their respective Submissions and Comments.  However, it is necessary to note some of the additional points which were made, in respect of unfair dismissal liability issues, during the course of the oral hearing on 22 February.

105.	The parties agreed the following propositions:

(1)	Dismissal could be rendered unfair because of procedural shortcomings in the course of an internal disciplinary appeal, even if the first stage internal disciplinary hearing had been impeccable from a procedural point of view.

(2)	The range of reasonable responses test (which is applicable in the context of consideration of whether dismissal was a fair sanction) is also applicable in considering the procedural fairness aspect of a dismissal decision.  (See paragraph 124 below).  

106.	We heard oral arguments, on behalf of both parties, on the implications of Seaton v Ulster Timber Company Ltd [1979] NI 23, Rowe v Radio Rentals Ltd [1982] IRLR 177 and Byrne v BOC Ltd [1992] IRLR 505.  

107.	For the respondent, Mr Mulqueen acknowledged that he had been given the opportunity to make submissions in relation to the Polkey issue and the conduct deduction issues (see paragraphs 141 and 153 below).  However, he informed the Tribunal that he was content for the Tribunal to arrive at its own conclusions in relation to those particular issues; it was noted that those issues involved matters of judgment and impression.  

The law on the unfair dismissal liability issues

108.	The Employment (NI) Order 2003 amended the 1996 Order in some important respects.  However, the parties are agreed that those amendments have no effect in relation to this particular case and that the 2003 amendments are not 

retrospective.  We have decided this case on the basis of those agreed propositions.  

109.	The Labour Relations Agency has issued a Code of Practice on disciplinary and grievance procedures (“the statutory Code”) pursuant to Article 90 of the Industrial Relations (Northern Ireland) Order 1992.  In deciding the issues in this case, the Tribunal is under an obligation to take into account any provision of the statutory Code which appears to the Tribunal to be relevant to any question arising in these proceedings.  The provisions of the Code are not themselves determinative of the questions which the Tribunal has to address, although a failure to follow a procedure prescribed in the Code may lead to the conclusion that a dismissal was unfair, which, if that procedure had been followed, would have been held to be fair.  (See Seaton, paragraph 106 above, at page 31).

110.	Paragraph 16 of the statutory Code makes it clear that “precedent” (previously decided internal disciplinary cases) may be relevant in deciding whether a disciplinary penalty is appropriate and what form it should take.

111.	A dismissal can, in some circumstances, be unfair because of procedural shortcomings in the process leading up to the decision to dismiss.  In considering those procedural matters, this Tribunal is not entitled to substitute our own opinion as to what would be a reasonable and adequate process.  Instead, we have to apply the objective standard of the reasonable employer as to what was a reasonable process.  The range of reasonable responses test (which is described at paragraph 124 below) applies as much to the question of whether the process leading to the dismissal was reasonable in all the circumstances as it does to the reasonableness of the actual decision to dismiss itself.  (See J Sainsbury plc v Hitt [2003] ICR 111). 

112.	In Rowe v Radio Rentals Ltd (see paragraph 106 above), the EAT was considering the degree of separation which had to be apparent between the initial disciplinary authority and an internal appellate disciplinary authority.  The EAT stressed the need for realism in this context.  Browne-Wilkinson J pointed out that in general it is inevitable that those involved in the original dismissal must be in daily contact with their superiors who will be responsible for deciding the appeal; therefore the appearance of total disconnection between the two cannot be achieved.  Rules about total separation of judicial functions and lack of contact between the appellate court and those involved in an original judicial decision simply could not be applied in the majority of cases.  Furthermore, internal disciplinary bodies ought not to become entrammelled in the nets of legal procedure.   So long as they acted fairly and justly, their decision ought to be supported.

113.	However, in Byrne v BOC Ltd (see paragraph 106 above) the majority of the EAT took the view that a person could be disqualified from hearing an appeal not only where he was personally involved in the events that led to the dismissal or in the decision to dismiss, but also through involvement in the investigation.  According to the majority, it was entirely possible that a person who investigates an alleged disciplinary breach may well become so involved in that matter that it realistically becomes his cause so as to disentitle him from being a person who can conduct a fair appeal from a decision at the disciplinary hearing in which he played no part.  In the Byrne case itself, the close involvement of the manager conducting the appeal (in the decision to bring charges against the employee, and in determining the appropriate penalty) meant that, in reality he was a judge in his own cause.  

Therefore there was an unfair dismissal which was not cured by the internal appellate process.  

114.	In Perkin v St. George’s Healthcare NHS Trust [2005] IRLR 934, the Chair of the Trust had decided that she wanted an “exit strategy” for Mr Perkin.  He decided that he did not want any such exit strategy.  She was then instrumental in setting up disciplinary proceedings against Mr Perkin.  She chaired the panel which decided that he should be dismissed.  The employment tribunal decided that, in those circumstances, she was not impartial and was not the appropriate person to chair the disciplinary hearing and that, therefore, the dismissal was unfair because of procedural shortcomings.  The Court of Appeal upheld that decision.

115.	In Henderson v Ulsterbus Ltd [1989] IRLR 251, the Northern Ireland Court of Appeal took the view that the industrial tribunal in that case appear to be suggesting that, in certain circumstances, it was incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witnesses.  In that case, O’Donnell LJ commented as follows:

“While some employers might consider [a quasi-judicial investigation with a confrontation of witnesses and cross-examination of witnesses] to be necessary or desirable, to suggest, as the Tribunal did, that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside “… a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view …” is in my view insupportable”.  [Emphasis added]

116.	The effect of Polkey v AE Dayton Services Ltd [1987] IRLR 503 is that, as an employer having prima facie grounds to dismiss will in the great majority of cases not act reasonably in treating those grounds as a sufficient reason for the dismissal unless he has taken the appropriate procedural steps which are necessary in the circumstances of the case to justify that course of action.  Procedural flaws can, depending on the circumstances of the case, take the decision to dismiss outside the range of reasonable responses.  The position is not affected by the question of whether or not the procedural flaws made any real difference to the ultimate outcome.

117.	The generality of that proposition has to be read however in the light of comments which Mackay LC made in the course of his speech in Polkey, at 504:

“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code”.

The implication of that comment is that an employer could escape from the scope of the general principle in Polkey if he could reasonably have concluded, in the light of the circumstances known to him at the time of dismissal, that the procedural safeguard in question would be utterly useless.  (The factual context of Polkey itself was that there had been alleged failures to consult and warn in the context of redundancy).  

118.	In considering whether procedural shortcomings make a dismissal unfair, we are entitled and obliged to have regard to the size and administrative resources of the employer.  (See paragraph 101 above).

119.	The provisions of an internal disciplinary procedure are not determinative of the issues before a tribunal and non-compliance with those provisions does not necessarily render a dismissal unfair.  (See Seaton, page 31H, cited at paragraph 106 above).  However, in considering whether a dismissal is fair or unfair, this Tribunal is entitled to have regard to the extent to which the respondent has complied with its own disciplinary procedure.  It is clear law that a failure by the employer to follow its own policies is a factor to be taken into account in deciding on the fairness or unfairness of a dismissal.

120.	It is generally recognised that dismissals for a first offence may be justified if the offence is one of gross misconduct.  Paragraph 7 of the statutory Code defines acts which constitute gross misconduct as acts:

“… resulting in a serious breach of contractual terms and will be for organisations to decide in the light of their own particular circumstances”.

121.	Paragraph 7 of the Code goes on to provide a non-exhaustive list of offences which could constitute gross misconduct.  The list is as follows:

“(i)	theft, fraud and deliberate falsification of records;
(ii)	physical violence;
(iii)	serious bullying or harassment;
(iv)	deliberate damage to property;
(v)	serious insubordination;
(vi)	misuse of an organisations’ property or name;
(vii)	bringing the employer into serious disrepute;
(viii)	serious incapability whilst on duty brought on by alcohol or illegal drugs;
(ix)	serious negligence which causes or might cause unacceptable loss, damage or injury;
(x)	serious infringement of health and safety rules; or
(xi)	serious breach of confidence (subject to the Public Interest Disclosure (NI) Order 1998.)”

In our view, it is appropriate for us to have regard to that list in considering whether the relevant misconduct in this case constituted gross misconduct.

122.	In Walters v Top Crust Foods Ltd [1972] IRLR 108, an employee was dismissed for using offensive language.  However, in our view the factual context of Walters was far removed from the factual context of the present case; in particular, in Walters, the employee was guilty of insubordination.  

123.	At common law, summary dismissal was regarded as justified if the employee had committed an offence of gross misconduct; an employee was regarded as having committed such an offence if he or she committed a repudiatory breach of contract.  This was a type of conduct which undermined the trust and confidence inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment.  (See paragraph 847 of Division A of “Harvey on Industrial Relations and Employment Law”).

124.	We have already referred above, on several occasions, to the concept of the range of reasonable responses.  In considering whether the choice of dismissal as a sanction was fair (within the meaning of Article 130(4) of the 1996 Order) in this case, it is appropriate for us to apply the range of reasonable responses approach.  The essence of that approach can be summarised as follows:

(1)	In deciding on the reasonableness of the employer’s conduct, we are not entitled to substitute our own views for those of the employer and decide whether we ourselves would have dismissed in the circumstances of this case.  

(2)	Instead, we have to make a wider enquiry.

(3)	This approach (the “range of reasonable responses” approach) is based on the premise that in many 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.  

(4)	Against that background, the function of this Tribunal is to act as an industrial jury and to determine, in that capacity, whether, in the particular circumstances of this particular case, the decision to dismiss the employee fell inside or outside the band of reasonable responses which a reasonable employer might have adopted.

(5)	If the decision to dismiss in this case falls within that band, the dismissal is fair.  If the dismissal falls outside that band, it is unfair.

125.	So we have to apply the concept of the band of reasonable responses in considering the appropriateness of the penalty of dismissal in this case.  How is that approach affected by issues relating to inconsistency?  We deal with the law relevant to that matter at paragraphs 126 to 129 below.

126.	As was pointed out by the EAT in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, arguments about disparities (between the treatment awarded to a particular unfair dismissal claimant and the treatment accorded to others) should not be allowed to deflect from the key question.  The key question is whether, in the particular circumstances of a particular dismissal, the employer acted inside or outside the range of reasonable responses.  As Waterhouse J remarked in Hadjioannou itself (at page 355): 

“It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered.  It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate”.

Hadjioannou was approved by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 308.

127.	As we have noted above, a failure on the part of the employer to follow its own policies is a matter which can be taken into account by a tribunal in deciding whether or not a relevant dismissal is inside or outside the range of reasonable responses.  In the absence of such a policy, a tribunal is still entitled and obliged to take account of earlier inconsistent disciplinary awards in deciding whether or not the decision to dismiss was inside or outside the range of reasonable responses on this occasion.  

128.	A lenient sanction in the past does not mean that a fair dismissal cannot be carried out in the future.  (See United Distillers v Conlin [1992] IRLR 503, at 504).  Nevertheless, earlier leniency, on a former occasion, in relation to some other employee, is a matter which a tribunal should take into account in deciding whether the dismissal of this particular employee, on this particular occasion, is inside the range of reasonable responses, or is outside that range.

Our conclusions on the unfair dismissal liability issues

129.	We can now apply those legal principles to the facts of the case.

130.	On behalf of the claimant, Mr Grainger has alleged that there were a considerable number of procedural shortcomings, each of which, in itself, rendered the dismissal decision unfair.  In the circumstances of this case, it has been unnecessary for us to consider all of those allegations.  Instead, we have concentrated upon four alleged procedural shortcomings, which we address at paragraphs 131 to 136 below.

131.	We have arrived at the following conclusions in relation to each of those four alleged procedural shortcomings:

	(1)	In each instance, the allegation is factually accurate.

(2)	In each instance, the respondent could not reasonably have concluded, in the light of the circumstances known to it at the relevant time, that the relevant procedural shortcoming could have no possible effect on the outcome of the disciplinary process.  

(3)	In each instance, the respondent stepped outside the range of reasonable responses, in adopting, pursuing, or acquiescing in, the relevant procedural shortcoming.

(4)	Each relevant procedural shortcoming is, in itself, a defect of fundamental importance in the context of this dismissal.

In the following paragraphs, we identify each relevant procedural shortcoming, and provide reasons for some of the conclusions which are set out in the present paragraph.

132.	The first relevant shortcoming is the fact the internal Appeal Panel failed to take account of the outcomes of the Charles Kelly disciplinary decisions.  In arriving at our conclusions in relation to this matter, we have noted paragraph 16 of the statutory Code (which has been mentioned above at paragraph 110) and paragraph 1 of the respondent’s own Disciplinary Procedure.  (Paragraph 1 has already been mentioned above at paragraph 39 above).

133.	The second relevant alleged procedural shortcoming was the failure to allow simultaneous dual representation on the Staff Side, in circumstances in which simultaneous dual representation was being allowed on the Management Side.   That gave the appearance of inequality.  It implied that Management Side was being treated with greater indulgence than the Staff Side.  

134.	The third relevant procedural shortcoming consists of a combination of two factors.  First, the claimant’s representative was stopped from asking legitimate questions of Ms Smylie without good reason.  Secondly, when evidence was subsequently taken from Ms Smylie in the absence of the representatives, all material parts of that evidence were not accurately relayed by the Appeal Panel to the representatives.  (See paragraph 69 above).  In arriving at conclusions in relation to this particular matter, we have paid particular attention to the fact that, according to the Disciplinary Procedure, the Staff Side representative was entitled to be present when evidence was being received by the Panel.  (See paragraph 40 above).  Against that background, it was of special importance that the Appeal Panel should relay accurately, to the representatives, the content of any evidence received by them in the absence of those representatives.  

135.	 The fourth relevant procedural shortcoming relates to the variety of roles which Mrs Gardiner fulfilled (as detailed at paragraph 71 above).  In our view, as was pointed out in Rowe (see paragraph 112 above), it is necessary to take a pragmatic approach to any issues relating to the demarcation of various roles, in the context of internal disciplinary proceedings.  However, even if an appropriately pragmatic approach is taken, it is clear that the blurring of the adjudicatory and advocacy roles, in this case, took the respondent outside the range of responsible responses.  It was unfair for a key figure in the internal “prosecution” team to be involved in the various facets of the adjudication role in which Ms Gardner was in fact involved.  (She helped to choose the panels, she trained a panel member for his task, and she was involved in the drafting of the Appeal Panel’s decision).  

136.	Against that background, and for all the reasons set out above, we consider that the dismissal was unfair because of each of the four procedural shortcomings which we have highlighted above.

137.	Because of the features of this case which we have already highlighted at paragraph 73 above, we consider that the claimant’s proven misconduct in this case is analogous to some of the offences which are listed at paragraph 7 of the statutory Code.  We are also satisfied that the relevant misconduct has resulted in a serious breach of contractual terms within the context of the contract between the claimant and the respondent.  Furthermore, the claimant’s misconduct was of a type which was likely to undermine the trust and confidence inherent in the relevant type of contract of employment, and it did undermine that trust and confidence.  In the circumstances therefore, we are satisfied that the Appeal Panel was acting within the range of reasonable responses in deciding that the relevant misconduct constituted gross misconduct within the meaning of the respondent’s Disciplinary Code.   

138.	We agree with Mr Grainger that, in considering the range of reasonable responses approach, in the context of the choice of dismissal as a sanction, it is necessary to take full account of all relevant matters.  Those matters include the claimant’s length of service, his previously exemplary disciplinary record and the degree of provocation to which he was subjected.  We agree also that due account has to be 

taken of the decisions which had been made in the Charles Kelly disciplinary cases.  Furthermore, we also agree that the availability and practicality of other sanctions should also be taken into account.  However, we are satisfied that the respondent was also entitled to take account of the following matters.  First, it was a serious matter for a member of an ambulance crew to speak in an abusive, degrading and humiliating manner to a patient.  Secondly, during the initial disciplinary hearing and during the internal appeal hearing, the claimant (both personally and through his representatives) showed no remorse; did not clearly and unequivocally acknowledge the seriousness of the relevant misconduct; did not offer any clear assurances that there would be no repetition; and, generally, failed to take personal responsibility for the misconduct.  

139.	Having considered all of our findings of fact, and having considered all relevant matters (including the matters referred to at paragraph 138 above), we have concluded that the choice of dismissal, as a sanction for the relevant misconduct, was a choice which was within the band of reasonable responses which a reasonable employer might have adopted.  

140.	In arriving at the conclusions set out in the last paragraph above, we have assumed (in favour of the claimant) that the respondent’s decision in the disciplinary cases against Charles Kelly were inconsistent with the respondent’s decision to dismiss the claimant. We are satisfied that this circumstance does not invalidate the conclusions set out in that paragraph.  In arriving at the latter determination, we have taken account, in particular, of the following matters:

(1)	We have to remember that, ultimately, the central question is whether, in the circumstances of this particular case, the decision to dismiss (as distinct from imposing some other disciplinary sanction) fell within the range of reasonable responses.  We are satisfied that the decision in this case was within that range.

(2)	The respondent did not have a policy that relevant misconduct (misconduct of the type in which the claimant engaged on the relevant occasion) would not attract dismissal as a sanction for a first offence.  

 (3)	Undue leniency on an earlier occasion cannot, in itself, take a decision on a  later occasion outside the range of reasonable responses (although, of course, in deciding whether the decision in the present case was within, or was outside, the range of reasonable responses, due account has to be taken of the earlier decisions in the Charles Kelly cases).

(4)	Until the hearing in these proceedings had begun, the claimant was unaware of the Charles Kelly disciplinary decisions.  Therefore, he had not been misled, by those decisions, about the likely attitude of the respondent to misconduct of the relevant type.

The Polkey issue

141.	Article 152 of the 1996 Order provides that, where a tribunal makes an award of compensation for unfair dismissal, the award is to consist of a basic award and a compensatory award.  

142.	Article 157(1) of the 1996 Order provides as follows:

“(1) 	Subject to [certain other provisions of the 1996 Order], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.  

143.	The Polkey decision (see paragraph 116 above) is authority for the proposition that, in deciding on the amount of compensation which is “just and equitable” for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would have been dismissed in any event, even if there had been no procedural shortcomings in connection with the dismissal.  

The law on the Polkey issue

144.	 In considering the Polkey issue, two questions have to be answered.  First, if the dismissal had been free of any procedural defect, would a decision to dismiss have been within the range of reasonable responses?  Secondly, would the employer have decided to dismiss in that situation?

145.	As Lord Bridge accepted, in the course of his speech in Polkey, there is no need for an “all or nothing” decision on this issue.  If the tribunal thinks there is a doubt whether or not the employee would have been fairly dismissed (in the absence of any procedural defects), this element of doubt can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.  

146.	In King v Eaton Ltd (No.2) [1998] IRLR 686, the Scottish Court of Session suggested that an employer is not always entitled to call evidence that compensation should be reduced on the basis that it was likely that the employee would have been dismissed in any event.  (See King at 691). According to the Court, it was for the tribunal to decide, as a matter of impression and judgment:

“…whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been”.

The Court also pointed out that if there has been a “merely” procedural lapse or omission, it may be relatively straightforward to envisage what the course of events would have been if procedures had stayed on track.  The Court contrasted that situation with situations in which the shortcoming is of a “substantive” (as distinct from a procedural) nature.  (See King at 691, 19).

147.	In Perkin (already referred to above at paragraph 114), the claimant was the Director of Finance of a Healthcare Trust.  He had been dismissed because of conduct issues relating to his management style.  The tribunal was satisfied, in the circumstances, that the choice of dismissal, as a response to the conduct, was within the range of responsible responses.  However, the tribunal had also been satisfied that the procedure leading up to the dismissal was unfair, because of a lack of impartiality on the part of the Chair of the disciplinary panel.  The tribunal concluded that, had Mr Perkin’s disciplinary proceedings been conducted by an 

independent person, there was a 100% chance that Mr Perkin’s employment would still have been terminated.  Accordingly, the tribunal decided to make a Polkey deduction from the compensatory award of 100%.  The Court of Appeal upheld that determination.  

Our conclusions on the Polkey issue

148.	As already indicated (at paragraph 139 above), we are satisfied that in this case the choice of dismissal, as the disciplinary penalty in respect of the relevant misconduct on the part of the claimant, was within the range of responsible responses open to a reasonable employer.  Accordingly, we are satisfied (despite the major procedural shortcomings which occurred during the process which ended in this dismissal) that the respondent could have dismissed the claimant fairly if it had followed a fair procedure.

149.	We are satisfied that, if there had been no procedural shortcomings throughout the process which led up to the decision to dismiss, there was a 100% certainty that the respondent would, in any event, have dismissed the claimant.  We are so satisfied having considered all the findings of fact which have been set out above.  In particular, we are so satisfied in view of the fact that the relevant misconduct (the verbal abuse) occurred within a hospital and in the presence of a number of hospital staff, who had made it clear that they regarded the relevant conduct as being a very serious matter.  We are certain that those circumstances would have weighed heavily with any internal disciplinary authority, whether at first level or at appeal level.

150.	Because of those considerations, we have decided that it is appropriate to make a 100% Polkey deduction from any compensatory award.  

Should there be a contributory “conduct” deduction from the compensatory award?

151.	Article 157(6) of the 1996 Order provides that, where the tribunal finds that a dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers to be just and equitable having regard to that finding.

152.	It is unnecessary for us to arrive at any conclusion on the Article 157(6) contributory conduct issue, in view of the conclusions which we have already arrived at in respect of the Polkey issue.

The basic award reduction issue

153.	Article 156(2) of the 1996 Order empowers a tribunal, in certain circumstances, to reduce a basic award, in the light of the conduct of a claimant.

The law on the basic award reduction issue

154.	Article 146 of the 1996 Order provides that, where a complaint of unfair dismissal is found to be well founded, the tribunal has power, in certain circumstances, to make an order for reinstatement or re-engagement of the claimant.  Article 146(4) adds that, if no order of reinstatement or re-engagement is made, the tribunal is to make an award of compensation for unfair dismissal, to be paid by the employer to the 

employee, and that any such award is to be calculated in accordance with Articles 152 to 162 of the Order.

155.	Article 152 of the 1996 Order provides that, where a tribunal makes an award of compensation for unfair dismissal, the award is to consist of a basic award and a compensatory award.  

156.	At paragraph 108 above, we have already referred to the fact that the 1996 Order was amended by the Employment Rights (Northern Ireland) Order in some important respects.  However, we are dealing with the 1996 Order prior to the coming into effect of those amendments.  Two features of that Order (in its unamended state) are worthy of mention here:
	
(1)	Awards of “compensation”, made pursuant to Article 146(4) of the 1996 Order, are, as a general rule, entirely compensatory in nature (as distinct from having a punitive or deterrent element).

(2)	Any award made pursuant to Article 146(4) is limited to addressing economic loss.

157.	The purpose of a basic award is to address potential, as distinct from actual, economic loss.  The idea is that, in the course of the relevant employment, a claimant will have built up, or begun to build up, potential statutory entitlement to redundancy, but those entitlements will be wiped out by the dismissal.  (Accordingly, when the claimant starts work with a new employer, he will not have any accrued potential rights to redundancy).

158.	The amount of a basic award has to be calculated by reference to the rules set out in Article 153 of the 1996 Order.  Those rules provide, as a general rule, for an amount of a basic award, in the case of any particular claimant, which corresponds to the amount which the claimant would have obtained if he had been made redundant on the date of his unfair dismissal.

159.	Article 156(2) is crucial in the context of the issue which we now have to decide.  That paragraph provides as follows:

“(2)	Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

160.	The provisions of Article 156(2) can usefully be contrasted with the provisions of Article 157(6), which deals with conduct-related reductions from compensatory awards.  Article 157(6) provides as follows:

“(6)	Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

161.	The differences between the two sets of provisions include the following:

(1)	In the compensatory award “conduct” reduction provision, causation and contribution are an essential component.  They are not an essential component in the basic award reduction provision.

(2)	In the context of the basic award “conduct” reduction provision, no account can be taken on conduct which occurred after the date of dismissal.

162.	In Nelson v BBC (No. 2) [1979] IRLR 346, the English Court of Appeal was dealing with the equivalent of the compensatory award “conduct” reduction provision in Article 157(6). The court decided that, in considering reductions from compensatory awards in respect of conduct, no account could be taken of conduct which was not culpable or blameworthy (because it would not be “just and equitable”, within the meaning of the relevant statutory provision, to do so).  In our view, similar considerations arise in the context of the basic award “conduct” reduction provision with which we are concerned at present.  It would not be just and equitable to reduce the basic award in respect of any conduct on the part of the claimant if that conduct was not culpable or blameworthy (in the extended sense in which those terms are used in Nelson).

163.	Under Article 156(2) we have a broad discretion as to the amount of any reduction in respect of conduct.  In this case we are dealing with an unfair dismissal which is fundamentally flawed from a procedural point of view, in circumstances in which the choice of dismissal as a sanction was not, in itself, outside the range of reasonable responses.   

164.	We are aware of at least one reported case in which a reduction of only 50% was made from a basic award in circumstances in which the decision was substantively fair, but procedurally flawed: see Charles Robertson Ltd v White [1995] ICR 349.  We are also of course aware of the 100% reduction from the basic award which was made in Perkin (see paragraph 114 above); that aspect of the tribunal’s decision was upheld by the Court of Appeal in that case. 

Our conclusions on the basic award reduction issue

165.	We can now apply those legal principles to the facts of the case.

166.	We have decided to make a 100% deduction from the basic award.  We have arrived at that conclusion with regret.  On the basis of the evidence available to us, it seems to us that, until the incident on 18 February 2003, the claimant had generally carried out his duties with diligence and in a competent manner.  At the time of his dismissal, he was a person who had substantial family commitments.  As a result of his dismissal, he has lost his career in the Ambulance Service, a career which he valued and which provided him with a secure income and future.  The loss of that career had its origin in a single act of misconduct which occurred in the heat of the moment. 

167.	In deciding on the amount of reduction from the basic award, we have paid particular attention to the following matters:

(1)	The claimant’s conduct, both during the course of the incident itself, and in his responses to the employer during the period up to the date of the initial 

letter of dismissal, was culpable and blameworthy in the sense in which those concepts were used in Nelson.  

(2)	The relevant misconduct was serious.

(3)	We are not permitted to make a basic award for the purpose of punishing this respondent, for the purpose of indicating disapproval in relation to the procedural lapses, or for the purpose of deterring other employers from treating their own employees unfairly.  

(4)	We have no doubt that this claimant has suffered significant injury to feelings as a result of the procedural lapses.  However, we do not have power to award compensation for injury to feelings as part of a basic award for an unfair dismissal.  

Case Management issues

168.	In view of the length and duration of the case, we feel it is appropriate to make some comments about case management issues,  

169.	In future, cases of this type will be proactively case-managed at an early stage of the proceedings, well in advance of the date of hearing.  This is likely to have the effect of crystallising the issues at an earlier stage; thus leading to a reduction in the overall hearing time.  In the present case, it would have been useful to have had a preliminary hearing on the viability of the political discrimination issue.  (Neither party asked for such a preliminary hearing in this case).  If this case had been proactively case-managed from an earlier stage, a chairman might well have taken the initiative by ordering a preliminary hearing on that issue.  

170.	In future, any case similar to the present case will probably be the subject of orders for the exchange of witness statements.  In our view, such a procedure would be likely to speed up any hearing, by crystallising the issues, at an early stage, and by focusing the minds of the parties on the key issues.

171.	This case lasted for 16 days.  Over that period, we received oral testimony from 14 witnesses.  The length of the hearing was mainly affected by three factors.  

(1)	This was a political discrimination case in which it was alleged that acts of unlawful discrimination had been perpetrated by no less than seven individuals, both in the course of the initial internal disciplinary hearing and in the course of the internal appellate disciplinary hearing.  In the circumstances, in the absence of any relevant procedural agreement between the parties, Mr Mulqueen (for the respondent) found it necessary to call all the members of both of the internal disciplinary authorities.  

(2)	The length of cross-examination of many of the respondent’s witnesses was quite considerable, because their truthfulness and credibility was being challenged.  (It was the claimant’s case that most of the respondent’s witnesses were knowingly giving evidence which was misleading in some important respects).
	
(3)	In Replies to an Order for Particulars, it was asserted on behalf of the claimant that the dismissal was unfair on 30 separate grounds.  The 
Chairman of this Tribunal invited the claimant’s representative to reconsider the number of grounds upon which unfair dismissal was being alleged.  In response, he grouped the 30 grounds under eight separate headings, but decided that it was not appropriate to abandon any of the 30 separate grounds.

172.	We also feel obliged to make some comments about the gaps between the various hearing dates.  The case had been listed for just one week, in September 2005.  However, that was obviously an unrealistic estimate of the likely duration of the case.  Accordingly, although we sat on five days in September 2005, it was necessary to have the case re-listed for five days of hearing in November (the earliest date upon which all Tribunal members, all relevant witnesses, and both sets of representatives, could be available).  In November, it emerged that the parties’ revised estimate (of a total duration of ten days) was also unrealistic.  Therefore, it was necessary to re-list the case for a further five days in January 2006.  (Again, the January date was the earliest date upon which all relevant individuals could make themselves available).  Although we are not suggesting that the representatives were necessarily at fault because of the fact that the earlier estimates proved to be unrealistic, this situation does highlight the importance of ensuring that there are realistic estimates about the likely duration of any particular case.

173.	Throughout the case, vigorous efforts were made on behalf of this Tribunal for the purpose of seeking to ensure that the proceedings could be dealt with expeditiously and proportionately. In particular, a case management discussion was held on 31 October 2005. Key relevant points which emerged from that discussion were as follows:

(1)	The Chairman of this Tribunal reminded the parties that, during the first week of hearing, he had raised the question of witness statements being provided on a voluntary basis, but had been informed at that time that the parties expected that the case could be finished within an overall period of ten hearing days.  

(2)	It was made clear to the parties that, in the view of the Tribunal, ten hearing days (including the hearing days which by then had already been completed) should be perfectly adequate to deal with all the evidence in respect of all of the issues in the case.

(3)	The Chairman reminded the parties’ that the over-riding objective of the new procedural rules was to enable tribunals to deal with cases justly, and that dealing with a case justly includes dealing with the case in ways which are proportionate.  

(4)	The Chairman drew the attention of the representatives to the guidance given by Mummery LJ in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96.  (In that case, Mummery LJ was addressing the difficulty of dealing with discrimination cases which include numerous incidents involving many people over a long period).  Quoting that guidance, the Chairman informed the representatives that he expected them to take the following initiatives, in the course of discussions in which they should engage:

(a)	They were to formulate proposals to one another about ways and means of reducing the areas of dispute.

(b)	They were to formulate proposals to one another about ways and means of reducing the number of witnesses.

(c) 	They were to bear in mind Mummery LJ’s comments about the desirability of keeping cases within reasonable grounds by concentrating on the most serious allegations.

174.	We were subsequently informed that the representatives did have the discussions contemplated by the Chairman.  However, we are by no means clear that those discussions had any substantial effect, in terms of reducing the overall length of the case.  

175.	We accept that, in connection with all decisions relevant to these case management issues, both representatives have acted conscientiously and professionally and in a manner which they considered to be in the best interests of their respective clients.

Next steps

176.	We note that the claimant has asked for reinstatement.  The parties should have discussions, with a view to arriving at an agreed outcome within four weeks in relation to that aspect of the case.  If such an outcome cannot be achieved, the matter will have to be re-listed, for a further hearing, which should take place as soon as practicable.

Some general comments

177.	The outcome of this part of this litigation is that the claimant is entitled to a declaration that he has been unfairly dismissed, but he would not be entitled to any compensation pursuant to Article 153 or Article 157 of the 1996 Order.

178.	However, we wish to make clear that we are highly critical of the respondent’s failure to achieve a rudimentary standard of fairness, in the manner in which it treated this claimant in connection with the disciplinary process which led to his dismissal.

179.	It appears that there has been a state of mutual hostility between the ASU and the respondent’s Management for some years now.  It seems to us that some of the procedural lapses in this case were shortcomings which might have been avoided had it not been for that context of hostility.   

180.	Front-line ambulance staff perform a role which is very important to the entire community in Northern Ireland.  They often have to work in difficult conditions.  Sometimes they face danger.  Far too often, they are subjected to violence or to abusive behaviour.  Throughout this decision, in addressing the issues which we have had to decide, we have kept that background very much in mind.

Chairman:

Date and place of hearing: 	12, 13 September 2005; 15, 16 September 2005; 
30 September 2005; 14-18 November 2005; 
9-13 January 2006; 22 February 2006; at Belfast.

Date decision recorded in register and issued to parties: