THE INDUSTRIAL TRIBUNALS

CASE REF:	07397/09

CLAIMANT:			Frederick Downing

RESPONDENT:		NK Coatings Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and there had been no breach of contract.  The tribunal had no jurisdiction to hear the claim of disability discrimination.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Kelly
Members:				Mr J Boyd
					Mr P McKenna

Appearances:

The claimant was represented by his wife.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Judith Blair, Solicitors.

Background

1.	The respondent is a metal finishing company in Mallusk.  The claimant was employed by the respondent as a processor operator for approximately 14 years until his summary dismissal on 18 September 2009.  The dismissal followed a positive drugs test.  

2.	NK Coatings Limited is the correct respondent in this matter and the title of the case is amended accordingly.  

Issues

3.	The claimant alleged that he had been unfairly dismissed, that the respondent had breached his contract of employment and that the respondent had unlawfully discriminated against him on the ground of disability.

4.	The claim form lodged with the tribunal had stated that a written grievance had been lodged by the claimant with the respondent on 18 September 2009.  However the claimant accepted at the start of the hearing that no such written grievance had been lodged in relation to the alleged disability discrimination either at least 28 days before the lodgement of the claim, or at any stage thereafter.  The statutory grievance procedure set out in the Employment (Northern Ireland) Order 2003 had therefore not been followed by the claimant and the tribunal determined that it had no jurisdiction to hear the claim of disability discrimination.  The case proceeded as an unfair dismissal/breach of contract claim.  

5.	The issue for the tribunal to determine was therefore whether the claimant had been unfairly dismissed within the meaning of the Employment Rights (Northern Ireland) Order 2006 (the 2006 Order) and whether there had been any breach of contract in relation to the contractual period of notice or otherwise.

6.	The tribunal heard evidence from;

i.	Mr Craig Addley, the Production Manager in the claimant’s area of the factory;
ii.	Mr Alan McCoubrey, the Operations Manager to whom Mr Addley reported and who conducted the disciplinary hearing;
iii.	Mrs Amanda Fisher Murray, the respondent’s Personnel Manager; 
iv.	Mr Simon Ferguson, the Personnel Manager in NK Fencing Limited, a related company, who heard the claimant’s appeal against dismissal together with Mr Paul Harvey; and
v.	The claimant.

	The tribunal was referred to a lever arch folder containing 432 papers of documentation and to additional documentation which emerged during the course of the two day hearing.  

Relevant Law

7.	Article 130 of the 1996 Order provides;

		“130 – (1) In determining for the purposes of this Part, whether the dismissal of an employee is fair or unfair, it is for the employer to show –

		(a)	the reason (or, if more than one, the principal reason) for the dismissal; and
		(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	A reason falls within this paragraph if it –
		
(b)	relates to the conduct of the employee,

(4)	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

	(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

8.	The burden of proof is on the employer to establish the reason for the dismissal and, in a case of this type, to demonstrate that it was a reason relating to the conduct of the employee.

9.	In Dobbin v City Bus Limited [2008] NICA 42, a court of appeal stated; 

		“49 – the correct approach to [equivalent GB legislation] was settled in two principal cases, British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Limited v Jones [1983] ICR 17 – and explained and refined principally in the judgements of Mummery LJ in two further cases – Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden reported at [2000] ICR 1283 and J Sainsbury v Hitt [2003] ICR 113.

		50 – in Iceland Frozen Foods, Browne-Wilkinson J. offered the following guidance – 

		Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:

		(1)	the starting point should always be the words of [equivalent GB legislation] themselves;
		(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
		(3)	in judging the reasonableness of an employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt, for that of the employer;
		(4)	in many, but not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;
		(5)	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within that band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

		51 - to that may be added that the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated –

			“what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of misconduct in question [usually, although not necessarily, dishonest conduct] entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly that the employer had in mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed the belief in those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in the criminal context, or, to use the more old fashioned term, such as to put the matter “beyond reasonable doubt”.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.” 

10.	The Court of Appeal reviewed these authorities and approved them in the case of Rogan v South Eastern Health and Social Care Trust NICA 2010 where it held;

		“21 – the test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”

11.	The Court of Appeal in Great Britain in Andrew James Taylor v OCS Group Limited [2006] EWCA CIV 702 stated;

	“in saying this, it may appear that we are suggesting that employment tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed, it is trite law that [equivalent GB legislation] requires the employment tribunal to approach its matter broadly as an industrial jury.  That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be.  The two impact on each other and the employment tribunal’s task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”  

12.	It is therefore not for the tribunal to rerun the disciplinary process and to substitute its own view as to the weight which should have been accorded to any particular evidence which emerged in the course of that process.  The tribunal has a limited jurisdiction and is restricted to considering whether the employer acted reasonably, in all the circumstances, by applying the statutory test, as discussed in the decisions set out above.  

Relevant Findings of Fact

13.	The claimant’s duties involved spray painting aluminium parts (powder coating) and applying a resin to certain aluminium parts (thermal breaking).  His foreman was Mr Gary Moan and, as indicated above, Mr Craig Addley was his production manager.  

14.	His duties had been the same for some 14 years and he was regarded as a highly skilled and experienced employee.

15.	On 3 April 2009, the claimant was given a final written warning.  The claimant was notified of his right to appeal that warning but the warning was not appealed.  The final written warning related to four separate instances of poor workmanship and carelessness on the part of the claimant.  The allegations were that the claimant had overfilled an item with resin during thermal breaking, had failed to check a machine before starting it, had wrongly cut an aluminium profile and had painted certain aluminium parts with an incorrect finish.  

16.	On 8 September 2009, Mr Moan, the claimant’s foreman, advised Mr Addley that the claimant had painted only one side of a set of roof flashings and that he had painted them with the wrong finish.  The job sheet made it clear that both sides of the flashings were to be painted and specified the precise finish.  The claimant sought in evidence to suggest that these errors had been the fault of whoever had hung the parts before spraying but he accepted that he had not read the job sheet and that reading the job sheet was a normal part of his duties.

17.	The claimant accepted, when cross examined by Mr Hamill, that he had made a series of simple mistakes.  The tribunal accepts that this was the case and that these mistakes were entirely out of character for the claimant.

18.	The claimant had not suggested to Mr Moan, to Mr Addley, or to anyone else in management that there was any particular reason why these mistakes had occurred.

19.	Mr Addley spoke to Mr McCoubrey, his line manager.  They concluded that there were only two possible explanations for this series of mistakes.  The first possible explanation was that there was some form of drug or alcohol problem and the second possible explanation was that there was some personal issue, of which they were unaware, which was affecting the claimant’s performance.

20.	Mr Addley and Mr McCoubrey decided to have the claimant tested under the respondent’s drug and alcohol policy.  That policy had been introduced in 2005 and provided for scanning new employees, and for the testing of existing employees.  It allowed for “random testing” and for “testing for cause”.  The claimant had received a copy of that policy in 2005 and had had no objection to its introduction. The claimant was aware that a colleague had been dismissed following a positive drugs test in 2005.

21.	The respondent contacted a medical testing company, NIVHA Laboratory Services Limited, and one of their employees attended the respondent’s factory on 10 September 2009.  He brought four testing kits.  The respondent arranged for the claimant to be tested “for cause” and also arranged for three other employees to be selected for random testing.   The claimant was aware that a colleague had been dismissed following a positive drugs test in 2005.

22.	Mr Addley approached the claimant on the factory floor and told him that he had been selected for drug and alcohol testing.  It would appear that the claimant was not told at this stage that he was being tested “for cause” rather than being selected for random testing but the tribunal does not regard this as a significant issue.

23.	The claimant was taken to an office area where the drug and alcohol testing was to take place.  This required a urine sample and a breath test.  The claimant went into a toilet cubicle and provided a urine sample, after some initial delay, and handed that sample, in an open beaker, to Mr Cosby, the tester.  The tester and the claimant then went together into a ground floor office where the testing materials were on a table.  There was a window opening out onto the car park where the tester had parked his vehicle.  

24.	The tester took three samples of the claimant’s urine from the beaker and placed each of the three samples in a phial.  Each phial was then labelled and bar coded and then placed in separate sealed tamper proof plastic bags.  The claimant signed a form consenting to the tests and acknowledging witnessing this procedure.  One of these bagged samples was sent on to a laboratory for detailed testing.  The remainder of the urine in the beaker was subject to an “instant test” for drugs.  That “instant test” showed a positive result for cannabis and THC.  The tester also administered a breathalyser test which showed negative for alcohol.

25.	The order in which these three tests took place was disputed and the claimant argued that the tests had not been conducted properly and that the chain of evidence had been broken.

26.	It is clear that the tester left the office through the window (thankfully on the ground floor) to get a breathalyser tube from his vehicle and that, during the minute or so when he was absent from the room, the open beaker containing the claimant’s urine was left on the table.  Only the claimant was present in that room during that period.  The tribunal is satisfied that the respondent was entitled to take the view that there was no possibility of that sample being contaminated either accidently or deliberately during that period.  The claimant clearly would have had no motive to do so and neither would the tester.  The claimant suggested that there was “urine all over the table” and that that was the source of possible contamination.  In the unlikely event that there was “urine all over the place” the respondent was entitled to take into account the fact that the three other employees tested on that day proved negative for cannabis.  In the even more unlikely event of urine from the table in some way entering the open beaker containing the claimant’s sample, it could not have resulted in a positive reading for cannabis.

27.	Following the positive result in the instant test, the tester spoke to Mr Addley who immediately suspended the claimant on full pay pending further investigation.  The respondent’s disciplinary procedure defined gross misconduct as including;

		“intoxication induced by alcohol and drugs”
		“deliberately ignoring health and safety and hygiene and/or security rules and therefore endangering ones own or another’s wellbeing or safety.”

28.	The drugs and alcohol policy also stated that;
	
		“employees in breach of this policy will be treated under the company’s disciplinary procedure as contained in Section 11 of the company handbook.

		Gross misconduct may be applicable if an employee comes under notice by –
		intoxication induced by alcohol and drugs.”

29.	The claimant alleged that he had asked for a retest when he was told that he was being suspended by Mr Addley and that he had offered to pay for any such retest.  The tribunal does not accept that this happened.  The claimant did not make any arrangements for a private drug test through his GP until 18 September 2009, over a week later.  The claimant had visited his GP on 14 September 2009 to obtain a list of medication he had taken without, at that stage, suggesting a private drug test.  If, as the claimant alleges, he was immediately minded to seek an independent drugs test, it is inherently unlikely that he would then have forgotten to do so for more than a week after being suspended from work.  

30.	The claimant alleged, during the internal disciplinary and appeal hearings and before the tribunal, that his food had been “spiked” at a party that he had attended on 5 September 2009, shortly before the drug test.  He had earlier raised the possibility that he had inhaled cannabis through passive smoking at this party.

The possibility that his food had been spiked had been briefly raised by the claimant during the disciplinary hearing on 18 July 2009 but it had only been pursued with any vigour after the passive smoking theory had been discounted by Dr McCrea a medical advisor engaged by the respondent.    The respondent arranged for the claimant (and his wife) to meet Dr McCrea and for Dr McCrea to interpret the results of the laboratory test which had followed the instant test.  His opinion, delivered to the claimant and his wife and then to the respondent, was that the positive reading was at a level which was consistent only with actual consumption of cannabis.  The respondent was entitled to note that the suggestion of “spiking” and, in particular, the suggestion that a bun had been “spiked” had not been raised by the claimant during his meeting with Dr McCrea.  Given the claimant’s admitted experience with drugs, the respondent was entitled to wonder why the “spiking” explanation had not been made out more strongly at any stage before 23 September during the appeal process.  The claimant alleged that he had recognised symptoms on 5 September; he “felt funny”.

31.	The nine page letter setting out the respondent’s reasons for dismissing the appeal clearly set out the respondent’s concerns in this regard.  It also clearly set out the respondent’s reasons for rejecting the “spiking” theory and the tribunal concludes that the respondent was entitled to reach that conclusion.

32.	The manner in which the disciplinary hearing was conducted was unsatisfactory.  The claimant was not, at that stage, given a proper opportunity to offer an explanation for the positive drugs test or to put forward any mitigation.  However the tribunal has to look at all the circumstances, including looking at the procedure as a whole, including the appeal stage, before determining whether the dismissal was fair or unfair.  It is settled law that a defect in procedure at the disciplinary stage can be cured at the disciplinary stage  -  Taylor  v  OCS Group Ltd (above).  The appeal process in this case was particularly thorough.  The tribunal is satisfied, after considering the evidence of Mr Ferguson and the associated documentation, that each and every point put forward by the claimant was considered carefully during that appeal process.

33.	The tribunal is therefore satisfied that, overall, the disciplinary and appeal process was fair.

34.	The arguments put forward by the claimant in the appeal procedure and before the tribunal to the effect that the drug testing procedure had been significantly flawed had no substance and the respondent was entitled to reject them.  An employer is not obliged to carry out a forensic examination to the standard that is expected of the PSNI in a criminal prosecution.  Technical quibbles about the “chain of evidence” are not relevant.  The question for the tribunal is whether the drug testing procedure was broadly fair and therefore whether the respondent had been entitled to rely on it.  There was some unresolved doubt as to whether the claimant had been offered a choice of testing kits, and the testers temporary defenestration was undoubtedly bizarre, but there was no reason for the respondent to believe that the test had been contaminated, either deliberately or accidentally.  The respondent did not interview the tester personally but did, as part of the appeal process, get a written explanation of events from the testing company.  The respondent had also arranged for the claimant (and his wife) to meet Dr McCrea so that Dr McCrea would have their input when accessing the significance of the laboratory test results.  Apart from seeking to personally interview the tester (and it is difficult to see what that would have added to the written explanation provided on his behalf) it is hard to see what else the respondent could reasonably have done to investigate further.   The tribunal is therefore satisfied that the investigation, when judged against the objective standard of a reasonable employer, was carried out properly.

35.	The claimant had no difficulty with the drug testing policy as such and it is clear that it had been accepted by the workforce, and implemented, for some five years.  The claimant accepted the respondent’s concerns about the health and safety issues that would arise if a worker was intoxicated while in the Mallusk factory.  He also accepted that his job was “safety critical”.

36.	In all the circumstances of this case, a reasonable employer was entitled to conclude, in the absence of any other credible explanation, that the claimant’s errors in work were due, at least in part, to a level of intoxication.  The respondent was entitled to rely on the results of the drug test and to conclude that the claimant had been guilty of gross misconduct.

37.	Given the clear rule in relation to intoxication, the health and safety implications and the fact that the rule had previously resulted in summary dismissal and was therefore known to the claimant, summary dismissal was a penalty which the respondent was entitled to impose.

38.	The claim of unfair dismissal therefore fails.  There was no evidence of any breach of contract and that claim also fails.

Chairman:	

Date and place of hearing:    9, 10 August 2010, Belfast.

Date decision recorded in register and issued to parties: