Smith v Fruit of the Loom  (Unfair Dismissal)  (19 November 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 75/02

APPLICANT:	David Smyth

RESPONDENT:	Fruit of the Loom 

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed.

Appearances:

The applicant was represented by Mr J O’Neill of Thompson McClure Solicitors.

The respondent was represented by Ms L Toolan of the Engineering Employers’ Federation.

Extended Reasons
The Facts
1.	There was little dispute about the main facts.  The applicant had been employed by the respondent for some ten years.  There was no suggestion that he had in any way been an unsatisfactory employee.  The respondent operated globally and had sites in England, Germany and Morocco as well as, more locally, in Buncrana and Campsie, Londonderry, where the applicant was employed.  

2.	On 6 June 2001, the plant manager at Campsie, Mr Ian Campbell, was approached by the personnel manager Ms Brunker.  She was clearly in a state of distress.  She produced to him a notice she had taken from the notice board situated near the spinning department.  The notice related to a fishing expedition but it had been defaced by the addition of a crude and offensive comment of a sexual nature specifically directed at Ms Brunker.  Mr Campbell commenced an investigation.  He was able to determine that the notice had originally been put up between 7.30 pm on 3 June and 7.30 am on 4 June.  He was also able to establish that it had been in its original, undefaced, state on 4 June and to deduce that the act of defacement must have taken place over a period of approximately 48 hours between 4 June and lunchtime on 6 June when Ms Brunker had found the notice and brought it to him.  He was able to ascertain the names of all those who had attended work during that period.  Although the notice board, which was one of a number, was accessible to all employees Mr Campbell ‘homed in’, as he put it, on those employees who would have been in the area on shifts at the time and also those members of the day staff who would have been there.  He spoke to the manager of the spinning department, Mr Jim Murphy and they considered all the names.  They spoke to some of the people identified.  Mr Campbell was unable to give an exact figure but believed it might have been ten out of some thirty two who would have been involved.  Mr Campbell indicated that he had not wished, at the time, to press the enquiries or to institute them on a wider scale since he did not wish to cause any fuss which would further embarrass Ms Brunker.  The applicant was not one of the persons interviewed.  

3.	These enquiries proved fruitless.  Mr Campbell approached a friend of high rank in the RUC who suggested that he employ a private investigator.  Mr Campbell contacted the investigator who had been suggested and enquired as to whether the handwriting on the notice could be traced.  After a while the investigator indicated that he had found a hand writing expert and the notice was dispatched for examination.  After a further period, the investigator made a request for a number of samples of handwriting for comparison.  It was suggested that the handwriting of five or six people should be submitted.  Mr Campbell’s evidence was that he obtained from the company’s files handwriting samples relating to five people.  Three of these he had selected because of their participation in wage negotiations involving Ms Brunker where the tone of the meetings involved was high.  He selected the fourth person on account of his having used sexual innuendoes in the past.  Finally, he selected the applicant because, as he said, he had seemed agitated following an investigation into an unpleasant prank involving another employee with a disability.  The samples were sent away.  A request for further samples from two of the original group was made.  The applicant was one of these two.  Further samples were submitted and the report from the handwriting expert finally arrived.

4.	Mr Campbell’s evidence had been that five samples were sent and that the samples had, at the request of the investigator, been sent by way of numbered sheets.  This was to preserve anonymity.  In the event the report referred to only three samples all of whom were identified.  Mr Campbell suggested that identification might have been possible from the nature of the samples themselves which included such things as application forms.  He was unable to explain the lack of any mention of the other two samples sent.  The report was brief and clear.  The expert, after citing his experience and qualifications and rehearsing the documents he had received, excluded two of the three samples of handwriting submitted.  The report noted handwriting features involving all the nine characters which were included in the thirteen letters of the offending comment, features that were common to the applicant’s sample.  It noted no significant difference between the handwritings and expressed the opinion, on the balance of probabilities, that the applicant had written the offending comment.  Mr Campbell read the report several times.  It seemed clear to him that the person identified had written the comments.  He spoke to his police friend who considered that the report would ‘stand up in evidence’.  Mr Campbell concluded on the evidence that the person named, the applicant, had caused the distress to Ms Brunker.  He then called the applicant’s manager, Mr Murphy, to discuss what steps should then be taken.  They decided that disciplinary proceedings should be commenced.  

5.	On 3 October 2001, the applicant was summoned to a meeting with Mr Murphy and Mr Campbell at which he was informed that he was to be suspended pending a disciplinary hearing.  The expressed reason for this, according to the notes kept by Mr Campbell, was that it related to an item or items written about a person or persons employed at Campsie.  According to the applicant he was not informed why the disciplinary hearing was to take place though there was the comment that he had written something.  The tribunal considered there was little difference in the substance of these two statements.  It was common case that the applicant had asked for written evidence of what was alleged and that this was not provided on the grounds that the purpose of the meeting was only to inform him of the disciplinary hearing and that all evidence would be discussed at the hearing.  Mr Campbell’s notes also indicated that the applicant claimed that this was a disadvantage to him as he could not have access to what was being alleged against him and he was not being given time to prepare a defence.  Mr Adair of A E E U, who was to represent the applicant at the disciplinary hearing, wrote to the respondent to indicate that the applicant would be entitled to be aware in advance of the charge that had been laid against him in order to allow him to prepare his defence.  He expressed concern at the manner in which the applicant had been suspended on the grounds that he should have been informed of the allegations against him and asked that ‘by return of post you would advise’.  There was no response to this letter.  On 5 October Mr Murphy wrote to the applicant informing him of a disciplinary interview to take place on 8 October at 11.00 am.  This interview was concerning ‘your involvement in written comments about another employee, of a derogatory nature, of which were found on a public notice in Campsie’.

6.	The meeting on 8 October involved Mr Campbell and Mr Murphy, who were to take the decision, and the applicant and Mr Adair.  Immediately prior to the meeting a copy of the offending notice was handed to the applicant and Mr Adair and they were provided with a room and time in which to study it.  No other information was given at this stage.  When the meeting took place Mr Murphy indicated that the written remark was perceived as a sexually derogatory statement, that the company was taking it very seriously and that they had conducted an investigation and were confident that the handwriting was the applicants.  They had, he said, ‘come to this conclusion as we have sent this document to a forensic document examiner who has verified with reasonable belief that this is the case.  We are not at liberty to give you a copy of this report at this meeting’.  When the applicant stated ‘The handwriting is not mine’, Mr Murphy replied ‘With respect if the handwriting was not yours, you wouldn’t be here today’.  Mr Adair asked when the notice had been found, who it had been found by, who else was involved, who conducted the investigation and, according to his own evidence which the tribunal accepted in this respect, where the notice was put, when the offence took place, how the investigation was conducted and how many handwriting samples were involved.  Mr Adair also said that an indication was given that they would come back to him on these issues.  Mr Campbell denies this.  Whether such an indication was given or not the undoubted fact is that no such information was given.  It was also common case that a copy of the report was asked for on the basis that a proper defence could not be mounted but that this was refused.  

7.	On 10 October, the applicant received a letter jointly signed by Mr Campbell and Mr Murphy dismissing him on the grounds of sexual harassment of another employee which was considered to be an act of gross misconduct.  It was accepted that this was the first overt reference to either sexual harassment or gross misconduct which had been made throughout the affair.

8.	By letter of 11 October, the applicant indicated his wish to appeal on the grounds that he was not guilty of the alleged offence.  He also protested that a number of questions had been put to the disciplinary hearing in respect of which there had been an undertaking to come back with answers, that no answers had been received and that he had been denied the opportunity to view the evidence against him.  The only response to this letter was a letter indicating that the appeal was to take place on 18 October.  No papers or other information were furnished or made available to the applicant prior to the appeal.  Mr McIlroy, who conducted the appeal with a Mr Mallon, indicated that their judgment was that these matters could be addressed either at, or in the aftermath of the appeal hearing.  He did not consider giving the applicant a copy of the report prior to the appeal since he did not consider it appropriate to enter into any discussion with someone who had been through the grievance procedure and was coming forward to appeal.  At the appeal, it is common case that Mr Adair returned to the various questions he had previously asked, the failure to respond to these questions and the failure to provide a copy of the handwriting report.  He also emphasised that the previous hearing and process left a lot to be desired.  According to Mr Adair’s evidence, which the tribunal accepts in this respect, he suggested that the failure to provide this information and a copy of the report amounted to a fundamental flaw in the disciplinary process.  Mr Adair also indicated that the applicant was prepared to agree to an RUC investigation and to submitting his writing to a handwriting expert.  Suggestions were also made that other factors had dictated the dismissal.

9.	According to Mr McIlroy, in his direct evidence, the conduct and manner of the disciplinary process was something which he and his colleague discussed but, as he said, he ‘was concerned with the defaced notice and the dismissal’.  In cross examination he expressed the view that adequate information about the nature of the allegations against the applicant had been given at the outset and that at the hearing the applicant had been given every opportunity to state his case.  He also indicated that, subsequent to the appeal hearing, he had discussed with Mr Campbell whether any commitment had been given to respond to the various questions which had been raised at the disciplinary hearing and he was satisfied that no such commitment had been given.  He expressed the view that the applicant had sufficient information to make his case though he did concede in cross examination that had the applicant been aware of the time and place that the offending notice had been displayed he might have been in a position to offer alibi evidence and that if he had had a copy of the handwriting expert’s report he might have been in a position to challenge it.  He also accepted that Mr Adair had made the point that the lack of the information at the disciplinary hearing had prejudiced the outcome.  Following the hearing, Mr McIlroy and Mr Mallon had a number of discussions following which Mr McIlroy wrote, on 23 October 2001 to state that they considered that the agreed disciplinary procedure had been followed and that the decision to dismiss had been appropriate.  He also enclosed a copy of the handwriting expert’s report from which the names of the other individuals had been removed.  

The Contentions of the Parties

10.	On behalf of the applicant it was submitted that the investigation process was suspect in that only a proportion of the employees who had access to the place where the poster had been displayed were considered for interview and even within this restricted group only about one third had been interviewed.  Indeed, it was suggested that the investigation was so inadequate as to undermine or negate any belief which the respondent had that the applicant was guilty of the misconduct for which he was subsequently dismissed.  It was also submitted that the applicant had, contrary to the provisions of the respondent’s own disciplinary rules and of the Labour Relations Agency Code of Practice, been given inadequate information about the charge he was facing and inadequate time and opportunity to mount a proper defence.  Furthermore, he was at no time made aware that he was facing sexual harassment or gross misconduct charges:  nor was he told that he might be dismissed.  It was also suggested that the involvement of Mr Campbell in the investigation and to conduct the disciplinary hearing was a departure from the basic rules of fairness, particularly in a company of the respondent’s size.  The appeal process, and the applicant’s submission was equally flawed.  He was denied basic information despite a further request for it and the lack of this information left him with little opportunity of mounting anything other than a blanket defence.  He was unable to challenge the nature of the investigation, offer any alibi or challenge the report, a state of affairs which failed to satisfy the company’s own rules for appeals which provided that an employee should be given every opportunity to state his case.

11.	On behalf of the respondent, it was submitted that the standard by which the investigation should be judged was that of the reasonable employer and not that of the Old Bailey.  There was no rule of law which said that a person who conducted the investigation could not hold the enquiry.  Nor was there any universal requirement that copies of any statements must necessarily be provided.  Other options were possible.  The applicant was told of the report’s existence and was told of its conclusions.  It was accepted that great emphasis had been placed on this report but, it was suggested, that was reasonable given the independence and qualifications of its writer and its scientific nature.

The Tribunal’s Conclusions

12.	As regards the investigation, the tribunal noted that it was neither as structured nor as extensive as it might have been.  There had been an unstructured reduction of the potential suspects down to five, or perhaps even three.  Mr Campbell had explained that he was reluctant to extend the investigation or formalise it too much due to the nature of the incident and the sensitivities of Ms Brunker.  It also identified reasons for the selection of the five individuals for the purpose of seeking handwriting samples.  

While the tribunal accepted that there were deficiencies in the investigative process, the tribunal also noted the explanations for these deficiencies.  The tribunal did not consider it necessary to reach a conclusion as to whether the deficiencies were such as to wholly invalidate the belief which the respondent bore as to the applicant’s involvement in the incident since the tribunal does consider that, having formed that belief, the respondent’s subsequent handling of the matter was such as to render the ultimate dismissal unfair.  When the applicant was suspended the information he was given as to the reasons for the suspension were sketchy to say the least.  Even on the respondent’s evidence, he was told only that it related to an item or items written about a person or persons employed at Campsie.  He was not informed at that time that he was suspected of gross misconduct by way of sexual harassment although these were the reasons subsequently given for his dismissal.  The respondent’s own disciplinary rules as regards suspension indicate that it may be done to allow the company to investigate and to allow the employee time to prepare his case.  In the present case the company had already conducted its investigation by the time of the suspension and it is difficult to see how the employee, in this case the applicant, could prepare any case on the basis of the information which he had at that stage.  The information available to the applicant at that stage was certainly less than the ‘full details’ which the disciplinary rules relating to alleged harassment allow for.  Shortly before the disciplinary interview the applicant was informed that the written material had been found on a public notice and on the day of the disciplinary interview he was handed a copy of the notice.  His state of knowledge was thus enhanced to some degree but he was still ignorant of when the offence was supposed to have taken place or precisely where the notice had been.  As the disciplinary hearing progressed it was made clear that a handwriting report had been obtained which had identified the handwriting as that of the applicant.  However, no further information was given; no details as to the number of samples taken; no details as to the report’s methodology or findings; no details of the identity or standing of the author.  The applicant himself had sought greater detail at the time of his suspension and his representative had sought greater detail both prior to the disciplinary hearing and at the disciplinary hearing.  No such detail was given.  In the tribunal’s view it should have been.  In the tribunal’s view the amount of information given by the respondent was inadequate as to the nature of the offence and of the evidence.  It did not fall within the requirements of the company’s own rules or within the range of reasonable fairness in relation to identifying the case which the applicant had to answer and to allow the time and opportunity of preparing a proper defence.

13.	The investigation had been conducted by Mr Campbell who also took part in the disciplinary interview as a decision maker.  While the two functions are not necessarily incompatible they could not be said to sit well together.  In this particular case Mr Campbell, in his direct evidence, stated that at the conclusion of the investigation, prior to the applicant’s suspension and the disciplinary hearing, had concluded that the applicant was the person responsible, hardly a judicial state of mind in which to approach a disciplinary hearing.  The tribunal also had concerns about the state of mind of the other decision maker at the disciplinary hearing, Mr Murphy.  While the matter was not specifically drawn to the tribunal’s attention the tribunal noted, in the report of the disciplinary hearing presented in Mr Campbell’s evidence and taken by him at the time, that during the course of the hearing, when the applicant denied that the handwriting was his, that Mr Murphy replied ‘If the handwriting was not yours, you wouldn’t be here today’.  In considering what is reasonably fair procedure regard has to be had to the nature and size of the enterprise above.  In this case the clash of function could easily and, in the tribunal’s view, should have been avoided.  

14.	The defects outlined could have been remedied over the course of the appeal process.  In the tribunal’s view they were not.  No further information about the original offence was given despite the requests which had been made before, and at, the disciplinary hearing and which had been repeated in the applicant’s letter of appeal.  Indeed, the requests in the letter of appeal were neither acknowledged nor responded to.  Mr McIlroy, who conducted the appeal, said that it was not policy to enter into discussion with parties prior to appeal.  However, it was not discussion but information which was being sought.  Nor was any copy of the forensic report made available although this had been requested at the hearing, and in the letter of appeal where the applicant specifically stated that he had been denied the opportunity to view the evidence against him.  The position, therefore, was that at the outset of the appeal hearing the applicant was in precisely the same state of knowledge as he had been at the close of the disciplinary hearing and the tribunal has already indicated that it considered that state of knowledge to be inadequate.  At the appeal itself it became apparent that the basic thrust of the appeal, apart from the applicant’s protestation of innocence, was that the lack of information either as to the offence itself or as to the evidence against the applicant had prevented him from mounting a proper defence.  Mr McIlroy stated in evidence that the question of whether the procedures had been adequate was considered at the appeal stage.  The tribunal is not convinced.  In Mr McIlroy’s evidence in chief he referred to the question of the quality of the disciplinary hearing.  He said that it was something they discussed but that he was concerned with the defaced notice and the dismissal.  He also indicated that he had spoken to Mr Campbell about the answering of the questions which have been posed and, in particular, as to whether Mr Campbell had committed himself to answering them.  The crucial issue was not whether Mr Campbell had given a commitment but whether the information should have been given in the first place.  The tribunal was not convinced, on Mr McIlroy’s evidence, that that question had been properly addressed.

15.	If the procedural defects outlined by Mr Adair and by the applicant, were, in fact, considered by the appeal panel the tribunal cannot see how a reasonable panel could conclude that all the procedures were satisfactory.  As of the time of his suspension the applicant was aware only that he was alleged at some time to have written something about someone.  On the date of his hearing he knew only that at some time he had written something derogatory about someone and that it had been found on a public notice.  It was only when he actually reached the hearing that he became aware of what he was supposed to have written and about whom.  He still did not know where the notice had been displayed or when the offence had taken place.  In fact he was never told this at any stage.  The applicant had always asked, right from his suspension, for written evidence of what was alleged; that request had been repeated prior to the disciplinary hearing, and at the disciplinary hearing, where, for the first time, there had been a reference, in the starkest of terms, to the existence and final finding of the handwriting report.  A copy of that report had been requested and refused for the reason, according to Mr Campbell’s evidence, that other persons were named in it.  This problem could easily have been overcome and, indeed, it was overcome, since a copy of the report was sent to the applicant as an enclosure in the letter which rejected his appeal and confirmed his dismissal.  The ordinary rules of fairness require that anyone facing disciplinary action should be given as much information as is reasonably possible about the nature of the charges and of the evidence against him.  That standard, in the tribunal’s view, was not met in this case and the finding that it was, on the evidence available to the appeal panel, could not be regarded as reasonable.

Further Hearings

16.	For the reasons set out above, the tribunal considers that the applicant was unfairly dismissed.  The tribunal will reconvene at a time and place to be determined to consider the question of remedy and any other issues which may arise.  

Chairman:
Date and place of hearing: 19 November 2003, Belfast.
Date decision recorded in register and issued to parties: