THE INDUSTRIAL TRIBUNALS

CASE REF:	1132/08 IT

CLAIMANT:		Michael Webster	

RESPONDENT:	Precision Industrial Services Limited	

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

Constitution of Tribunal:
Chairman:		Mr Davey
Members:		Ms Mulligan
			Mr White
Appearances:
The claimant appeared in person.
The respondent was represented by Mr M Reid of Kelly & Corr Solicitors.

REASONS

1.	There was little or no dispute about the essential facts.
2.	The claimant was employed by the respondent as a window cleaner from 4 January 2005.  During the course of April/May 2008 the claimant raised grievances involving his foreman and the safety of working practices and equipment involved in abseiling.  These grievances culminated in a meeting on 9 June 2008 attended by the claimant and a number of members of the respondent’s management.  The happenings and statements at that meeting were summarised in a letter and sent to the claimant.  At no time did the claimant suggest that what was said in that letter to have happened had not happened or that what was claimed to have been said had not been said.  An investigation of the working practices had taken place and working methods had been improved. The claimant was relieved of abseiling work. The claimant’s part in that process was expressed to be appreciated.  So far as the claimant’s line manager was concerned his complaints, it was reported, were being investigated with a view to action, if appropriate.  It was explained that if disciplinary action was being taken against a supervisor it was not policy to discuss details of that action with members of the supervisor’s team; nor was it appropriate for the claimant to see the personal files of any other employee.  It was indicated that management’s belief was that the claimant’s opinion of his supervisor was due to a personality clash which it was hoped he could put behind him with a view to moving on.  It was also stated that, while management understood that the claimant did not like his supervisor, that alone was not a legitimate reason to terminate his employment.  That was not about to happen.  The hope was expressed that the claimant could put his personal differences with his supervisor behind him and not allow his personal feelings to affect his work or the effectiveness of the respondent’s operation.  The claimant replied to this letter 5 days later.  He confirmed that he was satisfied that his concerns regarding working practices around abseiling had been addressed and commented favourably on his future working relationship with his supervisor.  
3.	On 10 June 2008 the day after the meeting described above, a meeting took place at which some management, including the claimant’s supervisor, were present, along with all the window cleaners, to present and describe a new bonus scheme which was intended to be introduced.  Part of the qualifying behaviour for the bonus involved the wearing of proper uniform, time keeping etc.  The claimant said that they could give any bonus of his to charity and that they could shove the scheme.  He also described his supervisor as a “wanker”.
4.	The claimant was advised by letter, following this meeting, that a disciplinary hearing would be heard on 13 June to consider what was described as unsatisfactory behaviour towards a manager at the meeting. This letter merely stated that a disciplinary hearing was to be held and that the hearing was to talk about the allegations made about unsatisfactory behaviour towards the claimant’s manager on 10 June 2008.  The claimant was advised of his right to bring a work colleague or trade union representative with him but there was no indication of what kind of sanction, if any, might fall to be considered.  Statements were gathered for the purposes of the disciplinary hearing.  These statements were by no means satisfactory in that the statements of three separate people were all absolutely identical and quite clearly were not wholly applicable to all of the purported signatories.  The disciplinary meeting was deferred from 13 June to 23 June.  At the disciplinary hearing the claimant accepted that he had described his supervisor as a wanker although he maintained he had not added any emphatic adjectives as originally alleged.  He also accepted that he had indicated that management could give his bonus to charity.  The conclusion of the hearing was that it was believed that his outburst in front of his fellow workers was an attempt to undermine his supervisor’s authority and to belittle him in the presence of the work force.  The view taken by Mr Geary, who conducted the hearing, was that he had no reasonable alternative but to regard the action as an act of gross misconduct warranting summary dismissal.
5.	The claimant exercised his right of appeal.  At the appeal hearing the claimant again did not dispute what he had said other than that he had not used any emphatic adjectives.  In his appeal he raised a number of issues suggesting that similar language had been used to him, that he was confident that he could put the issues with his supervisor behind him, that such language was “shop floor” language, not amounting to gross misconduct, and expressing the view that he was dismissed for some other reason, namely raising health and safety issues.  The upshot of the appeal was a finding that he had not previously been dismissed for raising health and safety issues, that his conduct, even without the emphatic adjectives, was sufficient to justify dismissal, that his claim that he could put the problems of the supervisor behind was belied by his conduct and by the terms in which he talked about his supervisor at the appeal.  The decision to dismiss was confirmed although alternative employment was suggested for him. The claimant was unable to take up this employment. 
6.	The issues for the Tribunal were:
	(a)	Whether the claimant had been unfairly dismissed;
(b)	Whether, if the dismissal was unfair by reason of procedural defect, the dismissal would have occurred anyway, even if the correct procedures had been followed;
(c) 	Whether the claimant should be regarded as having been unfairly dismissed due to failure to observe the procedures set out in Part 1 of Schedule 1 to the Employment (NI) Order 2003.
(d)	If so whether, and if applicable to what extent, any award made by reason of (c) above should be increased.
(e)	If appropriate whether the claimant’s own conduct had in any way contributed to his dismissal and if so to what extent.  

7.	As regards the question of whether or not the dismissal was fair it was the claimant’s case that the use of abusive words, particularly without added emphasis, could not and did not amount to gross misconduct justifying the dismissal.  He also submitted that the fact that the respondent’s equipment had been tested immediately after he had raised his grievance about safety gave credence to his belief that he had been dismissed, not for the conduct alleged, but because he had raised the health and safety issue.  The Tribunal did not accept these views.  As regards the matter of health and safety those issues had been dealt with.  The claimant’s personal position had been dealt with by his being taken off abseiling work.  The equipment had been inspected and working practices reviewed.  Furthermore the claimant had indicated his satisfaction with the position regarding the health and safety issues.  In the Tribunal’s view it is difficult to go past this expression of satisfaction, and given that expression of satisfaction, it is difficult to see why the respondent should have been in any way concerned about the health and safety issue.  Nor does the Tribunal accept that the claimant’s behaviour at the meeting on 10 June was merely the use of a little “industrial language”.  Such language in a shop floor exchange might well not be regarded as particularly serious.  However, the particular context of this case was different.  A fairly lengthy series of investigations and meetings about the claimant’s allegations about his supervisor had been completed; the claimant had been told in clear terms that any disciplining of his supervisor was a matter for management; it had been made clear that the supervisor was not going to be dismissed and that he must move on, put their personal differences behind him and not allow his personal feelings to affect his work or the effectiveness of the respondents operation.  This warning was less than 24 hours old when the claimant chose to make the statements he did when all the window cleaners, his supervisor and management were present.  Mr Geary gave his evidence to the effect that he believed the claimant was forcing management to make a decision between the claimant and his supervisor.  In the Tribunal’s view the respondents were entitled to form the view, as expressed in the dismissal letter, that the claimant’s outburst was a deliberate attempt to undermine his supervisor’s authority and to belittle him in the presence of the workforce; as, in fact, more of a challenge than industrial language.  It is further the Tribunal’s view that the choice of dismissal as a sanction for such conduct falls within the range of responses which a reasonable employer might make to such conduct.
8.	There were some procedural deficiencies.  The statements which were taken in preparation for the disciplinary hearing were quite clearly not taken directly from the person’s concerned.  However one of the statement makers was present at the disciplinary hearing and at the appeal hearing and, more important, the claimant did not challenge the allegations in any substantive way.  The letter of invitation to the disciplinary hearing did not give any indication of the nature of any sanctions which the respondents had in mind.  Such indications should be given since, clearly, the knowledge that dismissal is a possibility may well affect the manner in which any person might approach the disciplinary hearing.  In this case by the time the claimant got to appeal he would have been in no doubt as to what the possible outcome might be and would no longer be labouring under any disadvantage of that kind.  The Tribunal also considered that it would have been preferable to keep proper records of the various meetings rather than using letters of summary instead.  All in all the Tribunal found the procedures used fell short of what is required.  The Tribunal found, in particular, that the failure to advise the claimant that he was at risk of dismissal at the disciplinary hearing stage was a breach of the procedures laid down by the Employment (NI) Order 2003.  It is true that the precise words of the legislation do not specify that potential sanctions must be disclosed.  However, the purpose of having to give the employee a step 1 letter must be to enable him to know the potential extent of what it is that he may have to face when he arrives at the disciplinary hearing.  Without knowledge of the potential outcome it is difficult to see how that purpose can properly be achieved.
9.	By virtue of Article 130 (A) (2) of the Employment Rights (NI) Order 1996 failure by an employee to follow a procedure in relation to the dismissal of an employee is not to be regarded as by itself making the employer’s action unreasonable if the employer can show that he would have decided to dismiss the employee in any event.  Furthermore, in considering the amount of any compensation which might be awarded under Article 157 of the Employment Rights (NI) Order full account has to be taken of the chance that the claimant might have been dismissed in any event even if there had been no procedural shortcomings (Polkey –v- A E Dayton Services Limited 1997 IRLR 503).   The Tribunal is satisfied that in this case, given the nature of the conduct and the context in which it took place, in clear contradiction of the claimant’s assertion that there were no issues between him and his supervisor, the Tribunal is satisfied that it is 100% likely that, even if there had been no procedural defects, the claimant would have been dismissed.  Accordingly no compensatory award is payable and no issues relating to the level of any compensatory award arise.
10.	However, the provision referred to in Article 130(A)(2) referred to above is expressly provided to be subject to 130(A)(1).  That sub-paragraph provides that an employee who is dismissed shall be regarded as unfairly dismissed if the statutory procedures set out in the Employment (NI) Order 2003 have not been complied with.  Article 154 of the Employment Rights (NI) Order 1996 provides that where an employee is regarded as unfairly dismissed by virtue of Article 130(A) the amount of the basic award, if it is less than four weeks pay, as it would be in this case, shall be increased to the amount of four weeks pay.  While there is provision in the 2003 Order for an uplift to be applied to awards made on the basis of failure to observe the statutory procedures, that provision applies only to compensatory awards and not to basic awards.  As already indicated no compensatory award is payable.
11.	According to the claimant’s application form his gross pay before tax was £1,100 per month or £253.85 per week.  Accordingly the basic award would be for 4 x £253.85 = £1,015.40.  Issues could arise as to whether the basic award should be subject to reduction for any reason or whether a basic award arising under a finding of unfair dismissal under Article 130(A) can be subject to reduction.  The Tribunal will be reconvened to consider, these issues along with any other relevant issues which the parties may wish to rise.

Chairman:

Date and place of hearing:	18 February 2009, and 
24 March 2009, Belfast	

Date decision recorded in register and issued to parties: