THE INDUSTRIAL TRIBUNALS

CASE REF:  363/09

CLAIMANT:			Jeffrey Mulholland

RESPONDENT:		Acheson and Glover Precast Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal orders the respondent, subject to the recruitment provisions, to pay to the claimant the total sum of £8,052.09.

Constitution of Tribunal:
Chairman:		Mr J V Leonard
Members:		Mr A Crawford
			Mr J Smyth

Appearances:
The claimant was represented by Mr C Hagan, Barrister-at-Law, instructed by Faloon & Co, Solicitors.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

REASONS

1.	The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Ian Steele, Production Manager, Jennifer McKenna, HR Officer, Stewart Cooke, Commercial Director, Trevor Atkinson, the claimant’s line manager, and Denis Deevy, Technical Manager of the respondent company.  The tribunal also heard evidence from Barbara Sayer, HR Manager of F P McCann Ltd regarding some post-employment issues.  In addition to the foregoing evidence, the tribunal had before it an agreed bundle of documents running to some 301 pages and additional documents were introduced into evidence by agreement during the course of the hearing. Upon conclusion of the oral hearing, the tribunal requested additional evidence concerning the claimant's earnings with the respondent and this was provided by means of an agreed affidavit of the claimant sworn on 8 March 2010.

THE ISSUE

2.	The claimant made a claim to the Industrial Tribunal by claim form dated 3 February 2009 whereby the claimant claimed unfair dismissal.  In a response to that claim dated 25 March 2009, it was confirmed on behalf of the respondent that the claimant had been an employee of the respondent company under a contract of employment and that the claimant had been dismissed from that employment. The response detailed alleged circumstances which were stated to have culminated in the dismissal of the claimant from employment with the respondent.  It was denied that the claimant had been unfairly dismissed and it was contended, in the alternative, that if the claimant were to be found to have been unfairly dismissed, which was denied, the claimant had contributed to his own dismissal.  The issue for determination by the tribunal was therefore whether or not the claimant had been unfairly dismissed by the respondent.  If unfair dismissal were to be found, the tribunal had to determine the matter of appropriate remedy.  After conclusion of the oral hearing, the tribunal received from the representatives acting on behalf of the claimant and the respondent written submissions and replying submissions thereto, these being two submissions in the case of each of the parties. The tribunal has determined the matter in the manner set out below in full cognisance of all of the evidence and in the light of the submissions in regard to the matter.

THE TRIBUNAL’S FINDINGS OF FACT

3.	In consequence of the oral and the documentary evidence before it, the tribunal, on the balance of probabilities, determined the following material facts:-

	3.1	The respondent, Acheson and Glover Precast Ltd, is a company of limited liability which is part of the Acheson and Glover Group which Group has its headquarters located in Fivemiletown, Co Tyrone.  As the tribunal understands it, the respondent company is one of a number of subsidiary companies under the Acheson and Glover Group “umbrella” and the respondent company has its headquarters located at Ballygawley in Co Tyrone and has a production operation which is conducted from premises at Ballyronan near Magherafelt, Co Londonderry.  At the material time the Magherafelt site employed approximately 48 employees and Ian Steele was the Production Manager and Jennifer McKenna was the Human Resources officer.  

	3.2	The terms and conditions of service applicable to the respondent’s employment of the claimant are significant in the matter and therefore deserve mention in a little detail.  There existed an employee handbook (“the handbook”) which was divided into a number of sections including those sections entitled “Personnel Procedures”, “Health and Safety” and “Fleet Risk Management”.  In the introduction to the handbook it was expressly stated that the handbook terms formed part of the employee’s contract of employment.  It was further stated that, whilst management reserved the right to vary contract terms, fundamental contract terms would only be varied with the employee’s consent.  The statement was qualified to the extent that the handbook terms were designed to be read in conjunction with the employee’s offer of employment in any specific case.  Section A.9.1 and following of the handbook dealt with the employer’s “Disciplinary Procedure”.

	3.3	Looking at the detail of this Disciplinary Procedure, under the title of “Investigation”, the handbook states at A.9.2, “In advance of a disciplinary hearing being held, a thorough investigation will take place into the alleged misconduct/capability matter.  The purpose of the investigation is to establish the seriousness of the issue.”  Sections A.9.3 and following up to A.9.6 deal with various stages of the disciplinary process including “Stage 1 - First written warning (minor misconduct)”, “Stage 2 – Final written warning (major misconduct)” and “Stage 3 – Dismissal”. That latter is then followed by mention of other sanctions as an alternative to dismissal and by the provision of information regarding the employee’s right to appeal.

	3.4	In respect of the “Stage 1” procedure (first written warning for minor misconduct) there is a non-exhaustive list of examples of the type of behaviour which might potentially result in the issue of a formal written warning.  These examples expressly include “ignoring safety rules or failing to wear safety equipment issued” and “unauthorised absenteeism”.  Beneath these specific provisions appear the words “Where, following the hearing, an employee is found guilty of misconduct, the employee will be informed in writing of the nature of the misconduct and the change in behaviour required and that the warning constitutes the first stage of the disciplinary hearing.  The employee will be notified that failure to improve could lead to a final written warning and, ultimately, dismissal.”

	3.5	Then at A.9.4 what is termed a “final written warning (major misconduct)” procedure is outlined, with a non-exhaustive list of examples of any such.  These examples include “repetition of previous offence(s)” and “breach of company operating procedures”.  Beneath these provisions the following words appear “Where there is failure to improve or change behaviour in the timescale set at the first formal stage, or where the offence is deemed sufficiently serious, the employee will be issued with a final written warning.  Following the hearing, if the employee is found guilty of misconduct, the employee will be informed in writing of the nature of the misconduct and the change in behaviour required and that the warning constitutes the second stage of the disciplinary hearing.  The employee will also be notified that failure to improve behaviour could lead to their dismissal or other action short of dismissal”.

	3.6	At A.9.5 “Stage 3” (the dismissal procedure) is stated as follows, “In the event of a first serious offence, or following a previous warning where there is repetition of the same or similar offence, or if, following a previous warning the required improvement or change in behaviour is not achieved within the stated timescale, the employee may be dismissed from the company with immediate effect.  The decision to dismiss will only be taken by an appropriate Manager who has the authority to do so.”  Below this under the title “Gross Misconduct” is a (non-exhaustive) list of examples of gross misconduct which include the following, “serious breach of, or failure to comply with Company Health and Safety regulations”.

	3.7	At A.9.6 under the title “Other Sanctions” the following appears, “Wherever possible, alternative sanctions shall be considered prior to any decision to dismiss an employee.  There may be occasions when the appropriate sanction is a compulsory transfer to other duties, change of work of [sic] location, demotion or loss of seniority or pay”.  Further in A.9.6 is included a statement of the employee’s right to appeal any disciplinary sanction.

		3.8	At A.9.7 under the title “Dealing with absence” the following words appear, “Where an employee’s attendance record gives rise to concern, or where management suspect there are no acceptable or genuine reasons for absence or if absence is unauthorised, the matter will be treated as a conduct issue and dealt with as a disciplinary matter.  If the absence is medically certified, the issue will be one of capability and will also be dealt with as a disciplinary matter in accordance with the disciplinary procedure.  Ill health dismissals on grounds of incapacity will commonly fall into two categories: persistent short-term absence and long-term illness.  Where there is an unacceptable level of intermittent absences, this will be brought to the attention of the employee and disciplinary action may follow if there is no sufficient improvement.”

		3.9	Turning then to the history of the claimant’s employment with the respondent, the claimant commenced employment on 28 August 2000.  His initial position was as a steel fixer.  It appears to the tribunal that the claimant’s employment was fairly uneventful in regard to his work history until early 2008.  In early March 2008 the claimant was off work due to an injury to his hand which necessitated an operation.  After a period of a number of weeks’ absence the claimant returned to work in late April 2008. However, he was given different work duties upon the recommendation of the respondent’s medical advisor.  On account of the claimant’s apparent inability to do the work of a steel fixer he was tasked with work as a semi-skilled labourer.  Notwithstanding the change in job function and a corresponding reduction in pay, the claimant did not appear to resist the changes, nor to protest. However, he did form a subjective opinion that the atmosphere at work had changed, especially so since he had instructed a solicitor to lodge a personal injury claim against the company in respect of the injury to his hand.  The solicitor wrote a letter of claim to the respondent dated 4 April 2008 in regard to this injury.

		3.10	The claimant’s initial encounter with the respondent’s disciplinary process occurred at the end of June 2008 when the claimant faced a disciplinary hearing. That was in regard to alleged misconduct where it was alleged that the claimant had seriously breached health and safety procedures by not wearing his personal protection equipment.  It was also alleged that he had refused to put on this equipment when told to do so by a supervisor, which was stated to amount to “serious insubordination”.  A disciplinary hearing took place, the outcome of which was confirmed to the claimant by letter dated 7 July 2008. The respondent’s decision was to issue the claimant with a final written warning in accordance with the company’s disciplinary procedures.  The reason stated was that the claimant had breached health and safety procedures on three occasions by failing to wear the appropriate personal protective equipment.  Further, he did not follow his supervisor’s instruction when he was told to put his hard hat on, that amounted to insubordination.  The claimant was warned that any further breaches of company policies could render him liable to further disciplinary action which might lead to termination of his employment.  The claimant was afforded a right of appeal, but did not appeal.  

		3.11	The claimant’s other, and indeed final, encounter with the respondent’s disciplinary process related to matters concerning absence from work.  The tribunal has above set forth in some detail parts of the respondent’s written procedures. It is not at all in contention that these applied to the claimant’s employment.  However, what was considerably in contention was a particular policy which was stated in evidence to have been set forth in a memorandum dated 
                                17 May 2006 from Ian Steele.  The evidence on behalf of the respondent was that a copy of this May 2006 memorandum was affixed to a notice board in the Magherafelt premises where employees, such as the claimant, would have had access to it.  However, in his evidence to the tribunal, the claimant denied being in any manner aware of the policy in question.  The copy of the May 2006 memorandum reads as follows, “All employees should make themselves aware of the company procedures on absence that is [sic] in the company hand book also they need to be aware that in any rolling 12 month period that AFTER 4 OCCASIONS OF ABSENCE OR 5 OCCASIONS OF LATENESS THE EMPLOYEE WILL BE REQUIRED TO ATTEND A DISCIPLINARY HEARING. This will be the same rule for each employee no matter which plant or site they work in”. The notice was signed, “Ian Steele, Production Manager”.  The three material issues in relation to this May 2006 memorandum, and which are of considerable concern to this case are, firstly, whether or not this memorandum and the policy encapsulated therein ever did properly come to the attention of the claimant and, secondly, if so, whether the policy did become part of any contract of employment, whether by express agreement or otherwise, and, thirdly, the issue of how any policy encapsulated within the memorandum might sit with and might be properly aligned with the other company policies, as mentioned in detail above, which latter company policies were certainly and without any doubt part of the respondent’s contract with the claimant.  The tribunal will return to these issues below. 

		3.12	The tribunal had sight of copies of forms from the respondent company entitled “Declaration of Absence Form”.  At the top of each form the printed words appear, “Use this form to record all occasions of casual and continuous sickness absence up to a maximum of 2 weeks”.  In Section 1 of these forms under the title, “Notification of Absence”, there is a space to insert the employee’s name, details of any message received, including date and time of receipt, the reason given for absence, details of the person who received the message and to whom the message was forwarded.  In Section 2 of these forms under the title, “Return to Work Interview”, there is a space designed to record absence, work date and time, return to work date and time, the number of occasions of sickness absence over the past 12 months, the number of days sickness absence over the past 12 months, whether absence had been approved as paid holiday, the total number of holidays and the employee’s reason for absence. There is a space for manager’s comments and for stating any corrective action required (with examples given of options of, “….treatment, counselling, improvement in attendance, disciplinary etc”).  At the foot of these forms is a space for the employee to sign and date the form and for the form to be countersigned by the relevant manager and dated.  

		3.13	The tribunal had sight in evidence of copies of these Declaration of Absence forms in respect of the claimant, these being respectively dated 26 June 2008 (in respect of absence on 24 of June 2008), 19 August 2008 (in respect of absence on 15 August 2008), 8 October 2008 (in respect of absence on 6 October 2008) and 6 November 2008 (in respect of absence on 3 November 2008).  It is the information derived from these Declaration of Absence forms, together with one instance of alleged unauthorised absence, which formed the basis of the disciplinary proceedings which were to be taken against the claimant and which ultimately resulted in his dismissal, when taken together with the existence of the final written warning.  However, it is worth noting that there appears to be a disparity between the content of these Declaration of Absence forms and the actual dates for such absences which were put to the claimant in the course of the disciplinary proceedings held on 15 December 2008, as mentioned below.

		3.14	In regard to evidence concerning the respondent’s line managerial procedures, Trevor Atkinson was the claimant’s line manager.  In his evidence to the tribunal Trevor Atkinson confirmed that his function had been to meet with the claimant upon his return to work from any absences and to complete the Declaration of Absence form on each occasion.  When that was put to him in the course of the hearing, Trevor Atkinson denied having been informed of any company policy to make any employee who might have been approaching a relevant “trigger point” in terms of work absences aware of any risk of disciplinary action which might flow from that.  Trevor Atkinson further denied having been contacted by either Ian Steele or by Jennifer McKenna to convey any issue to the claimant regarding the claimant’s absence record.  In addition, Trevor Atkinson was clear in his evidence that he was never tasked (nor did he feel it was his responsibility) to discuss with the claimant any required improvement in the claimant’s attendance or absence record.  However, this evidence was in conflict with that of both Ian Steele and Jennifer McKenna both of whom stated that it would be the respondent’s practice for the claimant to have been warned about his levels of absence before disciplinary proceedings were instigated.  However, the tribunal noted that there is no evidence that this issue (of the claimant possibly being warned about his levels of absence before any disciplinary proceedings) was investigated by management prior to the December 2008 disciplinary hearing.  In summary, Trevor Atkinson’s function was regarded by him as being properly discharged by merely recording information to the extent that he felt it appropriate on the relevant forms.  However, that was not done in the context of any disciplinary capability or conduct issue, as far as Trevor Atkinson was concerned.

		3.15	In regard to the issue of the claimant’s knowledge, or otherwise, of the policy contained in the said memorandum of 17 May 2006, Denis Deevy, who was the Technical Manager of the respondent company and based in Ballygawley, gave evidence to the tribunal that it was, as he put it, “common knowledge”.  Denis Deevy stated that he just accepted that all employees knew of the policy contained in the May 2006 memorandum.  Denis Deevy, however, was unaware concerning the posting of any such notice in the Magherafelt premises of this policy.  His explanation to the tribunal was that, on account of this policy, the respondent was not concerned with the actual reasons for absence but just with the number of absences.  The policy in question was rather succinctly described in the course of the hearing as a “four strikes and you’re out” policy, regarding absences (for convenience, as this is mentioned hereinafter fairly frequently, the tribunal will refer to this, in shorthand, as being the “four strikes” policy).  Whilst Denis Deevy’s understanding might have been that the “four strikes” policy was common knowledge amongst all employees, the evidence of Jennifer McKenna was that the policy was not documented in the employee handbook and indeed that was clear to see from an inspection of the handbook. Denis Deevy did not contradict that. However, Jennifer McKenna’s evidence provided some more detail and indeed confirmed that this absence of documentation in the respondent’s handbook was intentional and was for the good reason that the respondent company did not wish to create what she referred to as being a “three occasions” culture.  By that Jennifer McKenna meant that if employees were to be aware of the “four strikes” policy, they might be inclined to take things to the limit in terms of absences (in other words to regard “three occasions” as incurring no potential sanction) and that would have been clearly unsatisfactory as far as the respondent was concerned.  However, in giving this evidence Jennifer McKenna as HR officer was expressly stating that this “four strikes” policy was not, as a matter of clear intention on the respondent’s part, brought to the attention of employees.  Jennifer McKenna’s evidence in this respect was thus consistent with the evidence of the claimant, who stated that he was quite unaware of the “four strikes” policy.  Jennifer McKenna’s evidence was also consistent with the evidence of Trevor Atkinson who had confirmed that he, as the claimant’s line manager, had not brought any such “four strikes” policy to the attention of the claimant.  Considering, all of this evidence, the tribunal’s determination in regard to the facts of the matter is that this “four strikes” policy did not come to the attention of the claimant. The tribunal fully accepts the claimant’s evidence that he was unaware of any such policy.  The reason for the tribunal’s preference for the evidence of the claimant is that it is inherently credible and that it is consistent with the evidence of the other witnesses mentioned. The tribunal accepts that there is no evidence that the policy was ever expressly brought to the claimant’s individual attention nor that he ever noticed the May 2006 memorandum stated to have been exhibited in the workplace. Whilst Denis Deevy might have contended that the claimant must have known about the policy, as it was “common knowledge”, that remains supposition and the tribunal does not accept that that is indeed the case when set against the other evidence. This therefore constitutes the claimant’s state of actual knowledge at the time the final disciplinary proceedings were taken against him in December of 2008.  

3.16	The first material absence with reference to the disciplinary proceedings and to which the evidence placed before the disciplinary hearing pertains is in connection with the claimant’s absence from work on 24 June 2008.  The reason given for this absence as recorded on the relevant Declaration of Absence form was, “pulled muscle in leg”.  It is worth mentioning that at no time in the course of proceedings was it disputed by the respondent, both in regard to this, nor indeed in regard to any other absence on grounds of stated illness, that this was anything other than a genuine absence on the claimant’s part, for proper cause.  In regard to this, it was made clear by the respondent’s witnesses and also was clarified in submissions that the respondent was not in any manner disputing the veracity of any absence from work on grounds of illness.  

3.17	The second Declaration of Absence form related to the claimant’s absence from work stated to be on 15 August 2008. Examining this form, whilst the reason given was not completed in Section 1, in Section 2 of the form the reason was stated as, “attend a wedding”.  The form was dated and signed by the claimant and by his line manager on 19 August 2008.  In respect of this, the tribunal heard evidence of what were know as “lieu days”.  There was certainly conflicting evidence on this. However, the tribunal is satisfied from the evidence that there was a facility available to employees to take a number of days in each year in addition to prescribed holiday leave days.  These additional days were commonly referred to as being “lieu days”. In regard to the absence on 15 August 2008, the claimant’s evidence was that he felt he was entitled to take the day in question as a “lieu day”.  

3.18	The next Declaration of Absence form relates to an absence from work stated to be on 6 October 2008.  In Section 1 the reason for the absence recorded is, “wouldn’t be in”.  In Section 2 there is no employee reason for the absence given and no line manager comments are recorded. At the end of the form there is the date, 
8 October 2008, and the form is signed both by the claimant and by Trevor Atkinson.  

3.19	The fourth and final Declaration of Absence form relates to an absence from work stated to be on 3 November 2008.  Again, in Section 1 the reason given is, “wouldn’t be in”.  In Section 2 there is no employee reason for absence nor any line manager comment.  The form is dated 6 November 2008 and is signed by the claimant and by Trevor Atkinson. Of these forms, only that latter one has therein recorded details of date and time of absence notification, the others having these details left blank, and the notification time appears to be recorded as “11.50 am”.  

3.20	Returning again to the employee handbook terms, in respect of the respondent’s absence procedure, at A.11.1 of the handbook under the title “Notification of Absence” the following words appear, “Anyone who is unable to report for work must advise the Company by contacting their Line Manager or Supervisor at the earliest possible time and no later than 10.00 am on their first day of absence.  In exceptional circumstances, should you be unable to contact your Line Manager in person, a friend or relative should do so on your behalf.  It is your responsibility to ensure that this is done.  When notifying the Company of an absence you must state your reason for absence and expected date of return and a contact number.  If your absence exceeds beyond three working days, you must bring this to the Company’s attention by adopting the above procedure again.  If you are unable to speak directly to your Line Manager when reporting an absence, he/she may contact you by telephone at a later stage in the day”.

3.21	In regard to what transpired on 8 December 2008 and the allegation of unauthorised absence, the tribunal noted the claimant’s evidence that he did telephone the workplace on 8 December 2008 to notify his absence.  However he did so after 10.00 am.  In regard to the disciplinary proceedings and the allegation levelled against the claimant of unauthorised absence, such proceedings were taken against the claimant on the basis that he was absent in an unauthorised fashion on both 8 and 9 December 2008 and that he had made no endeavour at all to contact the Company regarding his absence on either of those two dates.

3.22	By letter of 10 December 2008 Ian Steele wrote to the claimant to notify him that he was required to attend a disciplinary hearing on
           15 December 2008 to address alleged misconduct.  That matter related to the allegation, as it was put in the letter, “….your absence record is above a level deemed acceptable by the company”.  According to our records, you have been absent on 5 separate occasions since June 2008 including an occasion of unauthorised absence and hence why some form of disciplinary action may now be taken.”  

3.23	The disciplinary hearing proceeded on 15 December 2008 and was attended by the claimant, who was unaccompanied, by Ian Steele and by Jennifer McKenna.  At the outset of the hearing, Ian Steele put to the claimant that since June 2008 he had had five occasions of absence including an occasion on Monday and Tuesday 8 and 9 December 2008 when the claimant was absent and had failed to make any contact with the Company, resulting in unauthorised absence.  Ian Steele further put to the claimant that the claimant was absent on 24 June 2008, 19 August 2008 (that absence had indeed been on 15 August 2008), 6 October 2008, 19 November 2008 (that absence had indeed been on 3 November 2008) and 8 and 9 December 2008 (the latter being classified as “unauthorised absences”).  In response to an invitation as to whether or not he agreed with those dates, the claimant appears not to have immediately comprehended Mr Steele’s error in these dates. The claimant’s reply was that he had phoned in on the previous Monday and Tuesday as he was going to see about his back and that the doctor he went to see was sending him a letter as proof.  Jennifer McKenna requested the claimant to confirm to whom he was speaking when he phoned in.  The claimant was unable to confirm the identity of the person with certainty but he stated that he knew that it wasn’t either Denise or Lisa (both of whom worked in administration).  He stated that he had telephoned in when he was heading to the appointment at about 11.30am or 11.45 am but he took the view it was not unauthorised absence.  In response to these representations on the claimant's part, Jennifer McKenna pointed out that the respondent’s procedure was that the employee had to phone in by 10.00 am on the first day of absence.  

3.24	In reference to the other dates put to him, the claimant stated that he could not be sure if they were correct.  Jennifer McKenna confirmed that she had the return to work interview records signed by the claimant. However, she did not appear to observe Ian Steele’s errors in these mentioned dates. Jennifer McKenna then stated to the claimant that one of these absences was for a pulled muscle and one was for a wedding.  Jennifer McKenna questioned the claimant as to why he had not telephoned the respondent on the Tuesday 
           (9 December 2008).  She stated that the claimant ought to have phoned in on the Tuesday.  In reply to that, the claimant stated that he thought that if a man had a bad back the respondent would have known that he would be off for several days and indeed that he had returned to work on the Wednesday against doctor's advice. The claimant went on to make allegations of discrimination and less favourable treatment in respect of issues such as taking unpaid leave.  His allegations were that he had been treated less favourably than other individuals concerning the leave issue. At the conclusion of the meeting Ian Steele explained to the claimant that the respondent was not questioning whether or not the employee’s absence was genuine.  Ian Steele made it clear that the respondent was stressing that high levels of absence and unauthorised absence could not be tolerated.  From a record of the meeting placed in evidence, there appears to have been no detailed discussion, apart from the foregoing, concerning the nature of and the reasons for the various absences on the claimant's part.  The meeting then adjourned from 10.20 am until 10.36 am, a period of some 16 minutes, and was then reconvened.

3.25	The tribunal took note of the evidence of both Ian Steele and Jennifer McKenna concerning what transpired during the 16 minute break in the meeting.  The tribunal observed a contradiction between the evidence of Ian Steele and Jennifer McKenna.  In answer to questioning in cross-examination, Ian Steele stated that he did investigate the issue of whether or not the claimant had indeed telephoned the respondent on 8 December 2008. Ian Steele’s evidence in this respect was that he and Jennifer McKenna had spoken to two employees concerning the matter.   Ian Steele named these two employees as Carmel Murphy and Denise Downey.  When further questioned concerning whether or not he had interviewed the two employees, Ian Steele replied that he had done so.  However he stated that notes had not been taken concerning these interviews.  Jennifer McKenna's evidence was that she had spoken to two employees on the telephone to check whether or not the claimant had telephoned in.  Jennifer McKenna’s evidence was that she had spoken to “Denise” and “Lisa”.  (The tribunal understands this to be a reference to two employees respectively named Denise Downey and Lisa Shevlin). Apart from the disparity in the names, the tribunal also noted the disparity between Ian Steele's evidence and Jennifer McKenna's evidence concerning whether the investigation stated to have been carried out involved interviewing these two persons by telephone or in person.  Both Ian Steele and Jennifer McKenna indicated that no written records had been taken.  Noting the demeanour of the witnesses and the inconsistency in evidence between Ian Steele and Jennifer McKenna and the fact that records were not taken, the tribunal further notes that there was no reference whatsoever to this once the hearing reconvened and indeed any evidence that might have been gained from the two employees was not put to the claimant. On account of these foregoing factors, the tribunal harbours a significant doubt as to whether or not there was such an investigatory exercise conducted on the part of either Ian Steele or Jennifer McKenna in the course of that meeting.  The inconsistency apparent from the evidence and indeed the very brief time that was in practice available to conduct any such enquiry, tends to suggest that, on balance of probabilities, no such enquiry took place or was conducted before the conclusion of the disciplinary hearing.

3.26	When the disciplinary hearing reconvened after that break, Ian Steele stated to the claimant that the claimant had had five occasions of absence; that was not acceptable to the respondent.   Ian Steele proceeded to state that the respondent had no alternative but to dismiss the claimant from employment.  The reason given orally by Ian Steele and Jennifer at McKenna was that this dismissal was because of the unacceptable attendance record, including an unauthorised absence. 

3.27	By letter of 16 December 2008, Jennifer McKenna wrote to the claimant confirming the reason for dismissal.  The letter states, “…..your absence record was above a level deemed acceptable by the Company.  Since June 2008 you have had 5 occasions of absence including an occasion of unauthorised absence.  As explained to you, you currently have a final written warning on your file therefore the regrettable decision has been taken to dismiss you from employment on grounds of misconduct for repeated absence”.

3.28	The claimant was afforded by the respondent a right of appeal.  An appeal hearing took place on 9 January 2009. This hearing was attended by the claimant and by Denis Deevy and Cathy Read, the latter being a Human Resources officer with the respondent company.  In the course of that appeal hearing, the claimant alluded to his personal injury claim and he stated that he had been watched and harassed since he put the claim in.  He referred to his excellent record up until the claim for his hand injury.  The claimant also made mention of allegations concerning disparity in pay between him and other employees.  In the course of the hearing, Cathy Read referred to the reasons for dismissal as stated in the dismissal letter dated 
           16 December 2008.  In doing so, Cathy Read wrongly asserted that the claimant (as she interpreted the letter dated 16 December) had been issued with a written warning due to repeated absence (five periods in six months).  It appears that Cathy Read must have misunderstood the disciplinary record, as clearly that assertion was not correct.  The claimant had never received a written warning due to repeated absence.  That latter had been the reason for the dismissal but the previous (final written) warning given was for a different cause, that being breach of health and safety procedures and failure to wear personal protective equipment and insubordination in that regard. Notwithstanding that, Denis Deevy appears to have taken no steps to correct this apparent misapprehension on the part of Cathy Read.  

3.29	At the appeal hearing the claimant also raised the issue of his having ten “lieu days”, plus holidays.  Denis Deevy confirmed that that was correct.  However Denis Deevy denied that employees were entitled to take unpaid leave.  Denis Deevy then proceeded to state that if unpaid leave were to be granted, it would be agreed in advance and in exceptional circumstances.  By stating this Denis Deevy appears to have been confirming that there was no absolute prohibition on taking unpaid leave provided that this was agreed by management in advance.  The matter of so-called “lieu days” and the possibility of taking unpaid leave was of significance to the claimant and it was for this reason that the claimant raised the matter at the appeal hearing.  One of his arguments was that he had been treated in a less favourable fashion than some employees whom he stated had been afforded unpaid leave. Whilst this issue was raised by the claimant at the appeal hearing, there was also a matter of some contention in the course of the tribunal hearing as to whether or not unpaid leave had been afforded to other employees in a manner which was claimed to have resulted in the claimant being treated less favourably.  It has to be said that the tribunal was quite unable to make any specific determination upon any facts as alleged by the claimant. In any event any evidence on this point is not central to the issue and to the tribunal’s decision in this case and the tribunal’s decision may be arrived at without dealing with the foregoing in any further detail.

3.30	In a letter dated 14 January 2009, Denis Deevy confirmed to the claimant the various issues that had been raised by the claimant in the course of the appeal hearing, including the assertion that the claimant had had no sickness absence from his start date in this employment up until he had the difficulty with his hand in March 2008.  The issues also included the assertion that some of the most recent days of absence were related to stress and that the claimant had no previous disciplinary history until the personal injury claim was initiated.    Denis Deevy then reviewed the absence history.  In doing so he appears to have taken account of a period of five days of absence in 2007.  That is expressly mentioned in his letter thus clearly suggesting that it was a factor in his decision-making.  However, the tribunal notes that this 2007 absence history does not appear to have featured in the original disciplinary hearing.  However, Denis Deevy appears to have alluded to this earlier absence history in order to make the point that the March 2008 absence was not the first period of absence.  Denis Deevy also records in the letter that there was no mention made on the claimant's part of absences being caused by stress prior to the appeal hearing.  He alludes to a first written warning given to the claimant on 7 November 2001 that had apparently remained on the claimant’s file until 7 November 2002.  Again, Denis Deevy by making these references is making mention of alleged facts which had not at any stage been raised in any manner in the original disciplinary hearing process which had resulted in the dismissal.  These were also considerations in respect of which the claimant had never been afforded an opportunity to present any arguments or submissions.  Mr Deevy then confirmed that the dismissal outcome was to be upheld upon appeal.

3.31	In relation to the remuneration earned by the claimant at the time of dismissal, the evidence before the tribunal, both as contained in the claim form and the response thereto and also in the oral evidence adduced before the tribunal was not satisfactory. Upon conclusion of the hearing, on account of the unsatisfactory nature of the evidence the tribunal requested that additional evidence be adduced.  There was lodged with the tribunal an affidavit, with exhibits, sworn by the claimant on 5 March 2010. Correspondence from the representatives for the claimant and the respondent confirms that the content of this affidavit was agreed.  From the evidence contained therein the gross weekly wage in this employment was £424.60 and the nett weekly wage was £327.76. Upon termination of employment with the respondent, the claimant received a payment of £3,396.80 in lieu of notice, which sum was equivalent to eight weeks’ pay. 

3.32	Upon termination of the employment, the evidence concerning the claimant claiming Job Seeker’s Allowance (“JSA”) was rather vague.  It was contended on the part of the respondent that the claimant had not made such a claim.  In the agreed bundle of documents, there is evidence that the claimant did make a claim for JSA from 28 July 2009.  There is also evidence in these documents of the claimant complying with the JSA procedures and requirements from January 2009 onwards.  In the light of this latter evidence, on balance the tribunal concludes that the claimant did apply for JSA from the time of his dismissal or very shortly thereafter.  

3.33	In respect of other post-dismissal earnings by the claimant, Mrs Sayer of F P McCann Ltd confirmed that the claimant had worked for that firm from 15 June 2009 until 5 July 2009.  Mrs Sayer confirmed that the claimant had resigned from this employment.  The resignation appears to have been a voluntary one on the claimant's part.  In view of the tribunal’s determination of the matter as set out below, the tribunal does not need to determine any further facts regarding the claimant’s post-dismissal employment or earnings after this point.

THE APPLICABLE LAW

4.	The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, firstly the capability or qualifications of the employee for performing work of the kind for which he was employed by the employer, and secondly, the conduct of the employee. Article 130 (3) specifies that "capability", in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality.

5.		The guidance bearing upon the application of these statutory provisions derived from a number of leading cases is mentioned below in this decision.

6.	If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment and under Article 129 it is provided that if the contract is terminated without statutory notice (under Article 118) for the purposes of calculating the qualifying period for the basic award the date upon which the statutory period of notice would have expired is applicable. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the claimant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. It is possible to make a reduction in any award of compensation on account of contributory fault on the employee’s part.  Further, Article 130 A(2) of the 1996 Order, as amended, provides that the failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer's action unreasonable. That is so if the employer shows that it would have decided to dismiss the employee if the employer had followed the procedure.  The effect of this latter, comparatively recent, amendment to the law which had prevailed hitherto, is that if an employer can show it to be more probable than not that the employee would have been dismissed in any event (notwithstanding the failure to follow a procedure in relation to the dismissal) then that shall not of itself make the employer's action unreasonable.  This is what has been referred to as the so-called “Polkey reversal”; prior to this amendment any failure to follow a procedure was an issue going to the matter of the fairness of any dismissal.

THE TRIBUNAL’S DECISION

7.	The tribunal has had the benefit of extensive and detailed submissions on behalf of the claimant and the respondent.  This is a case where a claimant has made a claim for unfair dismissal and that claim is based upon a number of different grounds.  In submissions, Mr Hagan on behalf of the claimant has made the case that the respondent has devised particular employment terms and procedures. These govern and regulate the claimant’s contract of employment.  It is contended that, in clear and evident departure from these terms and procedures, the claimant has been subjected to disciplinary proceedings. These proceedings have resulted in a dismissal which is argued to be both substantively and procedurally unfair.  The tribunal has also noted the submissions made on behalf of the respondent which are to the effect that there was a proper and fair investigation, followed by a fair disciplinary process which resulted in the dismissal. A fair appeal was afforded and the dismissal was upheld. Thus the dismissal was fair both substantively and also procedurally in all respects, it is submitted on behalf of the respondent.

8.	In setting out relevant matters of fact, the tribunal has recited the substance of the relevant portions of the company handbook procedures. It is not in doubt that these procedures were incorporated into and made applicable to the claimant’s contract of employment with the respondent.  The tribunal has also noted the evidence concerning a specific policy stated to have been introduced by the respondent.  This has been referred to, in shorthand, as being the “four strikes” policy. However, the tribunal has determined that there is no persuasive or compelling evidence that the claimant was aware of this policy at the time of the disciplinary hearing and the dismissal. Examining the “four strikes” policy, there is very evidently an inherent contradiction or conflict between the terms of the “four strikes” policy and the express terms of the policies and procedures contained within the company handbook which latter were without doubt incorporated into and made applicable to the claimant's contract of employment with the respondent.  This is materially so in respect of the classification of disciplinary matters and the dealings with and treatment of employees absent from work.  Looking at these provisions in detail, the respondent's written sickness absence policy, as that appears in the company handbook, does not appear to equate in any manner with the “four strikes” policy.  The tribunal has made note of the inconsistent evidence as between Jennifer McKenna, the respondent's Human Resources officer, who asserted that it was not the respondent’s policy to alert employees to this “four strikes” policy (in order to avoid advantage being taken of that by employees) on the one hand, and, on the other, Denis Deevy, who has asserted that the “four strikes” policy was “common knowledge” across the workforce.  It has been argued on behalf of the claimant that this “four strikes” policy is an unfair and draconian policy, disregarding as it does the true nature and cause of any absence (and indeed whether it is genuine or not) and concentrating merely upon a mathematical scoring, thereby “triggering” disciplinary action. However, the task of this tribunal is not to evaluate any company’s policies and procedures, but rather to determine, according to the statutory tests mentioned above and in the light of the guidance and assistance given to the tribunal in carrying out that task in the interpretation of the statutory provisions provided by the leading cases, whether the decision to dismiss was fair or was unfair under any given circumstances. One very significant and material issue in this case therefore was whether or not the “four strikes” policy was or was not incorporated into the claimant's contract of employment.  On that issue, the tribunal's determination is that the “four strikes” policy did not form part of the claimant's contract of employment at the time of the December 2008 disciplinary proceedings.  This is so for the reason that the contract of employment in this case was governed by the settled and stated terms and conditions of service set out in the handbook. These terms and conditions must take precedence over a policy, the “four strikes” policy, which is clearly in conflict with these terms and which is stated to have been introduced by the employer, but which was not fairly and properly brought to the employee's attention. Thus any such policy must be deemed not to have been incorporated into the claimant's contract of employment with the respondent, whether by express agreement or by acquiescence on the employee's part.  In this respect it is worthwhile noting again that in the introduction to the respondent's handbook it had been expressly stated that the handbook terms formed part of the employee’s contract of employment and that, whilst management reserved the right to vary contact terms, fundamental contract terms would only be varied with the employee’s consent. The “four strikes” policy was clearly such a variation but there is no evidence of consent.

9.	Examining therefore the procedures which are, without doubt, applicable to the contract of employment, it can be remarked that the thrust of the procedures contained in the company handbook in respect of absence from work is grounded upon the notion that if absence from work is due to a genuine (including a medically certified) illness, the issue will be dealt with as a matter of capability.  It is certainly the case that one of the instances of absence relied upon by the respondent related to an absence from work stated to have been on account of an injury, ”… pulled muscle in the leg”, as the relevant form records. The respondent has made clear that it did not question the genuineness of the reason stated for that particular absence.  

10.	In respect of the foregoing, the claimant's representative has submitted in argument that this matter was not dealt with as a capability issue by the respondent.  In doing so, the respondent has thereby departed from the respondent's own express policies.  The tribunal’s attention has been drawn in submissions to the company handbook, at A.9.7, and the section entitled, “Dealing with Absence”.  Therein it is provided that if the attendance record gives rise to concern or where management suspect that there are no acceptable or genuine reasons for absence (or if the absence is unauthorised) the matter will be treated as a conduct issue and will be dealt with as a disciplinary matter.  Treating all of the absences relied upon by the respondent as constituting disciplinary matters is clearly how the company dealt with the absences in the claimant’s case.  Thus all stated absences have been brought before the disciplinary hearing, being classified as disciplinary matters.  The claimant's representative has further submitted that this part of the respondent's policy, in the same paragraph (see A.9.7 of the policy as mentioned in paragraph 3.8 above) does state that where there is an unacceptable level of intermittent absences this will be brought to the attention of the employee and disciplinary action may follow - if there is no sufficient improvement (the tribunal’s emphasis of the gist of that submission). To the tribunal, the apparent intention and purpose underlying these provisions is to afford to the employee, presumably upon due and proper notice (for there would be no point otherwise) an opportunity to improve work performance.  From Trevor Atkinson’s evidence, clearly that exercise was not carried out at line management level and such an opportunity to improve was not afforded to the claimant. Indeed in the particular circumstances of this case there is no evidence that the practical application of this express written policy was entrusted to managers such as Trevor Atkinson to implement under such circumstances as prevailed with the claimant.  Trevor Atkinson appeared to be ignorant of his potential role in any of this. It can be remarked that the tribunal assessed Trevor Atkinson’s evidence in this respect as given with candour and honesty. The conclusion from all of this is that there was no endeavour made on the part of the respondent’s management to afford to the claimant any opportunity to improve his performance in respect of work attendance; there certainly appears to have been no policy of requiring the line manager to become involved in such an exercise nor was anyone else entrusted with that task.  In conducting matters in this manner, the respondent has very evidently departed from its own stated and settled procedures which are part of the contract of employment.  The evident justification for doing so in the claimant’s case appears to be the “four strikes” policy.  However, as has been remarked, the claimant was unaware of that policy and such a policy does not form part of his contract of employment.  

11.	The tribunal now turns to the matter of the charges levelled against the claimant at the disciplinary hearing of “unauthorised absence”, which may be regarded as somewhat of a distinct issue to the foregoing.  Whilst there might certainly have been some doubt cast by the claimant in his evidence as to whether or not he was aware of the 10.00am  “deadline” requirement for absence notification, nonetheless there appears to have been a general comprehension on the claimant’s part that he was supposed to contact the respondent by telephone if he were to be absent from work.  Looking at the evidence, the tribunal does accept the claimant’s contention that he did telephone the respondent company on 8 December 2008 to state that he would be absent.  However, his call was made some time after 10.00 am on that date.  Looking at the further evidence and examining the issue of potential managerial discretion concerning that 10.00am deadline, it does appear from the evidence that there was some measure of discretion available to management, dependant upon the nature of the reason afforded by any employee for not contacting the respondent by the 10.00am deadline. If a measure of discretion existed dependent upon any given circumstances, an issue then emerges as to whether, once the employee raised the matter upon which any discretion might be exercised, such should be further explored by the employer. Here it is submitted on behalf of the claimant that once this issue of actual notification had been raised by the claimant at the disciplinary hearing, a fair and reasonable employer would have properly investigated and examined any facts bearing upon the possible excise of the discretion in respect of the reason for the “late notification” issue.  It is submitted that this is all the more so the case in view of the respondent’s inconsistency of approach, as evidenced by the lack of any recording of notification time in three out of the four Declaration of Absence forms and the fact that only the fourth form recorded details of date and time of absence notification (and indeed the notification time therein appears to be recorded as “11.50 am” but there was no issue apparently taken by the respondent). On account of the inconsistency in the respondent's evidence, although the respondent's witnesses might have wished the tribunal to accept that such an investigation was indeed conducted during the brief intermission in the disciplinary hearing, the tribunal is satisfied that no such investigation was conducted. It is certainly the case that even if such an investigation had been conducted (and the tribunal does not accept that it was), the result of any such was not notified to the claimant at the recommencement of the disciplinary hearing in such a manner as to enable the claimant to make any further comment. 

12.	From all of this, the tribunal determines that Ian Steele and Jennifer McKenna formed a concluded belief that the claimant was guilty of unauthorised absence from work on the two days in question, based upon their understanding of what constituted “unauthorised absence” as far as the company's policies were concerned.  In forming this concluded belief, the two did not fully and properly investigate, firstly, whether the claimant had indeed notified his absence to the company on the first of those two days in question at all, and secondly, if so, whether the claimant had made such a notification but had delayed the notification until after the 10.00am deadline, and, thirdly, if so, any possible reason for the delay in notification and the issue of whether managerial discretion might properly have been exercised under all of the circumstances.  In respect of this, for the claimant it has been submitted that the respondent did not satisfy the test that it had proper grounds to form the concluded belief that the claimant was indeed guilty of unauthorised absence.  

13.	In regard to the remainder of the absences, one of these was for leave in respect of which the claimant contended that he had received permission from Ian Steele to attend a wedding by means of employing a “lieu day”.  The tribunal noted that whilst Ian Steele denied the existence of the concept of “lieu days”, Denis Deevy did confirm that “lieu days” as a concept did exist.  Again, the tribunal noted that the evidence of the witnesses on the respondent’s part was regrettably contradictory in respect of the concept of “lieu days”.  Notwithstanding that, Ian Steele was in a good position to assess whether or not advance leave had been obtained from him for this particular absence and he clearly was of the view that it had not been authorised by him in advance. The tribunal regards that assessment as being reasonable and no proof was tendered on behalf of the claimant that such leave of absence had been approved by Ian Steele for the claimant to attend the wedding. In regard to the remainder of the absences, two in all, the reason stated was, “wouldn’t be in”. That does not greatly assist in the tribunal’s understanding of the cause of absence and the respondent’s treatment of that cause.  It seems that the line manager did not explore the reasons for these two absences nor endeavour to classify these as sickness absences or otherwise.  Indeed there is no evidence that the cause of these two absences was in any way explored, whether at the return to work stage or in the course of the disciplinary proceedings.  Certainly, these were not expressly classified as absences for reasons of illness. The respondent’s “Dealing with Absence” policy, as mentioned, provided that where the employee’s attendance record gave rise to concern, or where management suspected that there was no acceptable or genuine reasons for absence, the matter would be treated as a conduct issue and dealt with as a disciplinary matter. The tribunal notes that whilst, on the one hand, no case has been made on behalf of the respondent that these two absences were not for acceptable or genuine reasons, on the other, there seems to have been no investigation at all as to the proper cause of these absences. Noting this, the respondent’s “Dealing with Absence” policy does seem to provide that the decision to treat any instance of absence as a conduct issue flows from a position where management suspected that there were no acceptable or genuine reasons for absence.  Thus the treatment of these two absences as constituting a conduct issue, in default of any apparent investigation as to cause, seems once again to place the respondent in something of a conflict with its stated procedures.  Again, it may be observed that the reason for this appears to be connected with the “four strikes” policy in that the decision-making authority seems to have regarded the cause of absence as being of no significance. Rather, the simple numerical computation of absences and the setting of these against a fixed acceptable maximum was the only matter apparently requiring attention on the employer’s part.  Thus it is clearly the case that the line manager, Trevor Atkinson, was not tasked with any investigation as to the cause of these two absences where the claimant merely stated that he, “wouldn’t be in”, for there was no significance to be derived from the outcome of that investigation as far as the respondent was concerned in the light of the “four strikes” policy. Mr Steele made it clear to the tribunal in evidence that it was the number of absences which was his foremost consideration in his decision to dismiss the claimant.

14.	In this matter, the tribunal observes a very significant and evident conflict between the settled contractual policies of the respondent company (which were without doubt applicable to the claimant's employment) in respect of matters of discipline and absence, on the one hand, and, on the other, the “four strikes” policy. However that “four strikes” policy was not formally introduced into the claimant's contractual terms nor properly brought to his notice; there was no consensual amendment to or variation of the contract terms.  It is evident, looking at the application of the settled contract terms, that the absence from work issue was never brought to the attention of the claimant by management until the stage in matters where the claimant was facing disciplinary proceedings. No opportunity was ever properly afforded to the claimant to improve his work performance.  This is the case, notwithstanding the contractual force of the handbook procedures.  

15.	There was of course a disciplinary record in existence at the time that these charges were levelled against the claimant.  As far as the appeal procedure afforded was concerned, it has been noted above that one of the parties present at the disciplinary appeal appears to have misunderstood the nature of that record.  Leaving that aside, for it is not clear that such a misunderstanding might have influenced Denis Deevy’s decision on appeal, the tribunal does observe that it is certainly possible for any disciplining authority to take account of previous disciplinary sanctions, notwithstanding that any such might relate to a different type of misconduct (see Auguste Noel Ltd  v  Curtis [1990] ICR 604). In this case the tribunal’s focus must be on the fairness of the employer in the dismissal and in placing reliance upon these distinct allegations of misconduct from an earlier time. It is submitted, for the claimant, that unfairness flows from the respondent relying upon the final written warning not so much as requiring a change in behaviour to be achieved within a certain period of time but rather as constituting a general warning that any breach of company policies could justify dismissal irrespective of other contractual provisions in regard to which any breach might have existed. The respondent’s case in submissions is that the respondent does accept that the specific disciplinary charges faced by the claimant in December 2008 on their own would not have led to dismissal, but that, in the light of the existence of the final written warning, the respondent was left with no other reasonable option but to dismiss the claimant.

16.	Turning to the general application of the statutory provisions in respect of unfair dismissal as set out above, in these matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which recent guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in  Dobbin v Citybus Ltd [2008] NICA 42. The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now “neutral” burden of proof) is stated as follows:- 

(1) the starting point should always be the words of section 57(3) 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 the 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, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, 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 the band the dismissal is fair: if the dismissal falls outside the band it is unfair.'
In misconduct cases the Court of Appeal in Northern Ireland in Rogan has also again recently endorsed again the approach in British Homes Stores v Burchell [1980] ICR 303 where Arnold J stated:- 
'What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though 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 his 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 that belief on 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 a 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."
17.	The task of this tribunal is therefore is to determine whether the decision to dismiss fell within or without the band, or range, of reasonable responses of a reasonable employer.  In fulfilling that task the tribunal is conscious of the guidance provided to the tribunal in the cases mentioned above. Iceland thus requires the tribunal to bring to bear an entirely objective and dispassionate assessment of matters and prohibits the tribunal from determining the matter in any way subjectively in the application of the so-called “band (or range) of reasonable responses” test.  In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, the Court of Appeal in England held that the range of reasonable responses test applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct-related reason. As this is an alleged misconduct case, the various elements comprised in Burchell also need to be scrutinised. That exercise involves the tribunal addressing three primary questions: 

•	The first question is – has it been established by the respondent, as employer, the fact of that belief in the misconduct alleged? 
•	The second question is – had the respondent, as employer, in its mind reasonable grounds upon which to sustain that belief? 
•	The third question is – had the respondent, as employer, at the relevant time or at least at the final stage at which it formed that belief on those grounds carried out as much investigation into the matter as was reasonable in all the circumstances of the case?

18.	Looking at the first question, the argument has been made on behalf of the claimant that the respondent employer in this case did not have a proper and genuine belief in the misconduct alleged.  That argument derives from the submission made on behalf of the claimant by Mr Hagan that the respondent has not adduced sufficient evidence to show that it had a genuine belief at the material time that the claimant was guilty of the charge of misconduct, that charge of misconduct being connected with the accusation that there was an unacceptable level of absence.  Mr Hagan’s argument runs that, for there to be a proper belief in this misconduct alleged, the respondent would have been required to take proper account of the company's own policies concerning what properly might constitute an unacceptable level of intermittent absence.  Company policy provided that any such matter would have had to be brought to the attention of the employee; it had to be made clear that disciplinary action might follow if there were to be no sufficient improvement.  It was thus submitted that there did not appear to be any “yardstick” for measuring improvement. Rather, a disciplinary hearing was instigated once the level of absence which triggered that result had been reached.  

19.	Here the tribunal sees the argument being advanced on behalf of the claimant linked to the notion that a genuine belief, or otherwise, in conduct categorised as misconduct can only properly be gauged when seen in proper and true context.  Intrinsic to that context is the proper and fair categorisation of the nature and extent of any such alleged misconduct as that proper and fair categorisation is derived from the employer’s own codes of practice and procedures.  However, as Mr Hagan’s submission continues, even if the tribunal were to be satisfied that there was evidence that the respondent had a genuine belief in the fact of the claimant having an unacceptable level of absence (when that was adjudged in the proper context), it would nonetheless still be the respondent’s task to demonstrate that this conduct fell within a proper reason as provided for by Article 130 (2) (b) of the 1996 Order, that latter relating to the conduct of the employee and therefore being a potentially fair reason under Article 130 (1) (a). Regarding the matter of intermittent absence from work, Mr Hagan has drawn the tribunal's attention to the case of International Sports Co Ltd –v- Thompson [1980] IRLR 340 and to a portion of the judgment of Waterhouse J therein:- “… firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings, after the employee has been given an opportunity to make representations.  If then there is no adequate improvement it is likely that in most cases the employer will be justified including the persistent absences as a sufficient reason for dismissing the employee.” The submission has also made reference to the case of Lynock v Cereal Packaging [1988] IRLR 510. It is therefore submitted for the claimant that in this case the employer's procedures state that, if the absence were due to genuine (including medically certified) illness, the issue would properly be dealt with as a matter of capability.  As it had not been contended on the part of the respondent that the absences were anything other than genuine, these were capability and not conduct matters, it is submitted.  Mr Hagan has, further, drawn the tribunal’s attention to the case of East Lindsey District Council v Daubney [1977] ICR 566 in that regard.  The claimant's further submission is that it would have been quite open to the employer to have challenged the claimant's reasons for absence by way of misconduct proceedings.  Instead, the employer has chosen to focus on the issue of intermittent absences and has proceeded to categorise these as constituting an unacceptable level of absence. Thus disciplinary proceedings followed on grounds of misconduct. In doing so, it is submitted that the respondent has erred and the matter should have been fairly and properly categorised as a matter of capability under the respondent's own procedures. In summary, therefore, the argument advanced on behalf of the claimant is that the misconduct alleged arises from a mis-categorisation by the respondent. Thus, it is argued, the employer did not have proper and genuine grounds to believe in the fact of the misconduct alleged against the claimant. The foregoing is the claimant’s submission in addressing the first question.  As the tribunal understands the submission, the second question also is connected to that foregoing submission in that it is argued on behalf of the claimant that the respondent did not have in its mind reasonable grounds upon which to sustain the belief in the misconduct alleged for the reasons stated as foregoing. The third question is encapsulated within the answer to the first two questions in that the employer did not properly investigate the reasons for the absences and has thus not carried out as much investigation into the matter as was reasonable in all the circumstances.

20.	As the “unauthorised absence” (on 8 and 9 December 2008) is a rather different issue, that has been specifically addressed by the claimant’s representative in submissions.  Here it is submitted that, notwithstanding the fact that the claimant at the disciplinary hearing made the case that he had indeed telephoned the workplace on 8 December 2008, he was faced with the accusation that he had made no contact whatsoever with the respondent on either of those two dates.  Whilst it is certainly the case that the claimant produced no corroboration of his making a telephone call to the respondent company on 8 December, nonetheless the claimant did expressly raise the issue at the hearing.  As is mentioned above, the tribunal is not satisfied that there was any proper investigation of that suggestion on the claimant's part by the two persons who were tasked with the conduct of the disciplinary hearing, Ian Steele and Jennifer McKenna.  It is thus submitted on behalf of the claimant that either the respondent did not have reasonable grounds to believe that this was unauthorised absence (for the reason that it was believed, without further and proper enquiry, that no contact had been made by the claimant at all) or, alternatively, the claimant's concession made in the course of the disciplinary hearing that he had contacted the respondent, but that he had done so after the 10 am deadline, was seized upon by Jennifer McKenna to maintain what in effect constituted an amended accusation.  This was the accusation that there was an unauthorised absence, but this time such unauthorised absence was grounded not upon the failure to contact at all but upon the lateness of the claimant's contract with the respondent on 8 December 2008.  

21.	In response to these submissions, the respondent's case as articulated by Mr Mulqeen is that the absence procedures and the absence reporting requirements were very clear and were a matter of contract.  In all of the cases, save for the unauthorised absence, contact had been made with the respondent but the “four strikes” policy was applicable.  In respect of the instance of unauthorised absence on 8 and 9 December 2008, the rules clearly provided that contact had to be made before the 10 am deadline and that was not done. Once that deadline had passed, the matter was of significance thereafter as the rule had been clearly breached.  There was therefore an unauthorised absence relating to both of these dates. In answer therefore to the first question, had it been established by the respondent the fact of that belief in the misconduct alleged, Mr Mulqueen's submission was that this had been clearly and fully established as a proper and reasonable belief on the employer's part. In respect of the second question, Mr Mulqueen's submission on behalf of the respondent was that the respondent did have in its mind reasonable grounds upon which to sustain the belief in the misconduct alleged. In respect of the third question, the submission was that the respondent had indeed carried out as much investigation into the matter as was reasonable in all of the circumstances of the case. 

22.	Taking full account of these submissions, the tribunal cannot disregard the clear departure from the written procedures in the exercise of this disciplinary process on the respondent's part. Reliance has been placed up a policy which did not form part of the contract of employment between the respondent and the claimant, the so-called “four strikes” policy.  The pursuance of such a policy has led the employer, in this case, into the error of a rather single-minded and simplistic reliance upon a numerical calculation of absences.  This is so in circumstances where the employer felt that there was no significance to be attached to the investigation of the cause of any absence. The error, however, stems from the employer’s mistaken assumption that it was entitled entirely to disregard the conflicting contractual provisions (which most certainly applied to the claimant's contract of employment with the respondent) in the pursuance of the “four strikes” policy.  Thus the existing contractual terms and the concept of affording to any employee a fair and reasonable opportunity to improve after underperformance had been brought to the employer's attention have been set to one side and a policy sitting outside the contract has been the justification for this. Examining, firstly, the three primary questions stemming from Burchell it is sufficient to say that the tribunal accepts the substance of the submissions made on behalf of the claimant by Mr Hagan as set out above. To take one example of the difficulty that the tribunal has with the respondent's position, one of the instances of absence relied upon by the respondent to dismiss related to an absence from work stated to have been on account of an injury, a pulled muscle, where the respondent has not questioned the genuineness of the reason stated by the claimant for that absence. No further enquiry was made but this has been categorised in contravention of the handbook policy, “Dealing with Absence”.  It is the respondent's case that the respondent had a genuine belief in the misconduct alleged against the claimant in respect of this absence.  But the genuine belief in categorised misconduct must be grounded upon a proper and correct characterisation of any conduct properly as being misconduct.  Examining the respondent’s procedures, it is worthwhile bringing to mind the policy which states, “Where … management suspect there are no acceptable or genuine reasons for absence… the matter will be treated as a conduct issue and dealt with as a disciplinary matter.  If the absence is medically certified, the issue will be one of capability and will also be dealt with as a disciplinary matter in accordance with the disciplinary procedure.  Ill health dismissals on grounds of incapacity will commonly fall into two categories: persistent short-term absence and long-term illness.  Where there is an unacceptable level of intermittent absences, this will be brought to the attention of the employee and disciplinary action may follow if there is no sufficient improvement” . Very clearly, the respondent ignored that final provision and in doing so placed reliance upon a categorisation of the conduct in this instance as being one example of an “unacceptable level of intermittent absences”.  This latter concept suggests both a series of intermittent absences and also that these have attained an unacceptable level.  The attainment of an unacceptable level can only be seen in the context of the affording of an opportunity for improvement.  Therefore the correct and accurate categorisation of the misconduct and the belief in this misconduct can only be seen in the context of the respondent's settled procedures.  It is at this stage that the tribunal has difficulty in being satisfied that the respondent has conducted itself in a manner which is compliant with the guidance provided in Burchell.  The same can be said in respect of the other illustrations. No investigation as to the stated cause of absence, “ wouldn't be in”, was conducted and therefore the respondent could not properly adjudge whether these also formed part of an “unacceptable level of intermittent absences”.

23.	Turning then to the application of Iceland in the interpretation of the statutory provisions, as mentioned, the task of the tribunal is entirely clear. The tribunal must consider the reasonableness of the employer's conduct, not simply whether the members of the tribunal consider the dismissal to be fair. In judging the reasonableness of the employer's conduct the tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. The task therefore is to be conducted in an objective fashion by determining whether the decision to dismiss fell within or without the band of reasonable responses of a reasonable employer. It is not for the tribunal to make any observation other than in the context of the application of that objective assessment. The Sainsbury case also suggests that the range of reasonable responses test applies to the investigation into the suspected misconduct. 

24.	Here, the tribunal as the industrial jury is tasked with the determination as to whether, in the particular circumstances of this case, the decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.  What factors therefore might bring the decision to dismiss the claimant from employment, given all of the circumstances of the case, outside that band of reasonable responses of a reasonable employer? Any clear departure from the application of agreed contractual provisions and the invoking and unfair and inappropriate application of a disciplinary policy which did not form part of the employee's contract of employment might have this effect. That, of course, can only be adjudged in terms of degree, for the tribunal in applying the statutory test is addressing here the issue of whether something falls within or outside a range of potential responses. It is possible to surmise that there would be instances where an employer departs from contractual provisions but still falls within the range of permissible responses, notwithstanding that.  There will be other instances where the departure from the contractual provisions is so great or to such a degree that the conduct will clearly fall outside the permissible range. 

25.	In determining this, the tribunal comes back to the clear principle which is enshrined in the company's own policy which is without doubt to provide an opportunity to any employee to improve. This is so in circumstances where the categorisation of the misconduct (being absent from work in this case) upon the logical interpretation of the respondent’s disciplinary procedures, does not fall within the most serious type of misconduct which would justify a summary dismissal for a first offence. It will be remembered that the respondent’s “Stage 1” procedure (first written warning for minor misconduct) provided a list of examples of the type of behaviour which might potentially result in the issue of a formal written warning and that the list expressly included, “unauthorised absenteeism”. It will also be remembered that the respondent’s “Stage 2” “final written warning (major misconduct)” procedure provided a list of examples including, “repetition of previous offence(s)”. Here, there was not a repetition of previous offences of the same type but, nonetheless, it might be permissible for the respondent to take account of earlier misconduct if that exercise were to be conducted fairly.  Even then, the latter policy provides at this stage in the process that where there is failure to improve or change behaviour in the timescale set at the first formal stage, or where the offence is deemed sufficiently serious, the employee will be issued with a final written warning.  That express provision does not indeed countenance dismissal at that stage.

26.	Looking at all of this, the tribunal’s determination is that the respondent, in dealing with the claimant at the investigatory stage and in the conduct of the disciplinary hearing which resulted in the decision being taken to dismiss the claimant, engaged in conduct which fell outside the band of reasonable responses of a reasonable employer, when such conduct is assessed objectively and in accordance with the statutory provisions applicable and in the light of the guidance afforded to the tribunal in making that assessment by the cases mentioned above.  Further to that, the tribunal is entitled to examine the disciplinary appeal to see if that appeal corrected any procedural or substantive deficiencies in the original disciplinary process.  Examining the conduct of the appeal on the part of Denis Deevy, the tribunal sees the process as continuing to be adversely influenced and affected by unfairness of approach. Whilst Denis Deevy was certainly entitled to rely upon the submissions put forward by the claimant in the course of the appeal, he was also entitled to look at the core issues and to examine carefully overall issues of fairness and appropriateness in the respondent’s seeking to rely on the “four strikes” policy and in disregarding the relevant contractual terms which were applicable to the issues to be determined upon appeal.  The appeal did nothing to correct the unfairness of the original decision to dismiss the claimant under all of the circumstances.  That being the case, the tribunal's determination is that, as a matter of primary determination, the claimant was unfairly dismissed by the respondent.

27.	In reaching its final determination on the unfair dismissal issue, the tribunal is obliged to consider the effect of Article 130A (2) of the 1996 Order. As mentioned above, this amending provision provides that the failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer's action unreasonable. That is so if the employer shows that it would have decided to dismiss the employee if the employer had followed the procedure.  It is been submitted, on behalf of the respondent, that notwithstanding the fact that the tribunal might have reached the determination that some aspects of the dismissal were procedurally unfair in that these aspects departed from the contractual provisions applicable, in this case the respondent as employer has demonstrated it to be more probable than not that the claimant would have been dismissed in any event.  The tribunal does not categorise this as such a case. The tribunal does not see a minor or comparatively insignificant departure from procedures which have influenced the outcome of the matter.  Here the tribunal sees a very significant departure from the contractual terms which departure has resulted in an unfair dismissal. These provisions are therefore inapplicable to the determination of the fairness issue in respect of the dismissal.

28.	The tribunal now turns to the matter of remedy.  In this case the only remedy applicable in that of compensation.  Upon dismissal, considering that the employer regarded this as being a matter meriting summary dismissal and thus might have taken the view that there was no obligation to pay anything beyond the summary dismissal date by way of pay in lieu of notice, it is the case that the respondent has paid remuneration to the claimant amounting to £3,396.80 and would therefore be entitled to be given credit for that.  

The Basic Award

29.	In this case the claimant was employed by the respondent for a continuous period of eight years and he was aged 42 years at the date of termination of employment.  The basic award under these circumstances would ordinarily amount to eight and one half weeks’ pay.  The gross pay per week, as agreed, amounts to £424.60. However, the statutory maximum applicable at the time of dismissal in respect of the basic award was £330.00 per week.  Taking account of that statutory maximum, the basic award in this case would thus be £330 x 8.5 = £2,805.00. The excess paid by the respondent is therefore £591.80 and credit must be given for that excess. Thus there is nothing to be awarded for the basic award.

The Compensatory Award

30.	Under Article 157 of the 1996 Order the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. Thus the dismissal must be causally connected to the loss. In this case it has been submitted on behalf of the respondent that the claimant has failed to mitigate his loss.  Examining the history of the claimant’s activities after the dismissal, the tribunal does accept that the claimant signed on for JSA and was in receipt of that benefit for some part of the period between the date of termination of employment with the respondent and the date upon which he gained his next employment. That employment was with the firm of F P McCann Ltd and commenced on 15 June 2009.  This employment lasted a fairly brief time, until 5 July 2009. In this, the claimant earned the total sum of £783.39 nett.  The tribunal has heard the evidence and the arguments concerning the mitigation issue and the claimant's reasons for leaving this employment with F P McCann Ltd and commencing employment, which he did on 23 July 2009, with a company called “Purvis Stone Products”. Having carefully examined the evidence in this regard and having noted the arguments, the tribunal's determination is that any loss sustained by the claimant beyond the date upon which the claimant voluntarily resigned from employment with F P McCann Ltd is not applicable to action taken by the respondent in this case.  The end date for the loss flowing from the dismissal in this case is therefore 5 July 2009.  As the dismissal date was 15 December 2008, the applicable period for the loss amounts to 28 weeks.  The claimant's nett pay upon which the computation of loss is based is agreed at a figure of £327.76 per week. The loss and the consequent compensatory award in this matter is computed by the tribunal as follows:-

                     £327.76 x 28 weeks (15 December 2008 to 5 July 2009) = £9,177.28

       	Deductions from the compensatory award:-

        	(1) excess monies from pay in lieu of notice £591.80
      
        	(2) monies earned in employment with FP McCann Ltd  £783.39

      	The net compensatory award is thus £7,802.09 

Compensation for Loss of Statutory Rights

31.	The tribunal’s award for loss of statutory rights = £250.00.

32.	Apart from the argument that the claimant had failed to mitigate his loss by a failure on his part to seek proper remunerative employment at an earlier stage and thereafter by leaving the employment with F P McCann Ltd when he did, the respondent's submission also is that the tribunal must take into account the claimant's conduct and make a reduction in compensation on account of contributory fault on the claimant's part.  The tribunal does not accept the respondent's submission in that regard.  The dismissal, as has been mentioned above, was caused by the respondent's unfair conduct and disregard of the contractual provisions, not by the claimant's contributory fault.  There would have been no dismissal if the respondent had acted fairly and reasonably in the application of the contractual terms and provisions and if the respondent had conducted itself in a manner that fell within the band of reasonable responses of a reasonable employer.  Therefore the tribunal’s determination is that there should not be a reduction in compensation on account of any contributory fault on the part of the claimant.

33.	The total of the compensatory award and the award for loss of statutory rights is thus £8,052.09.

Recoupment of Benefit from Awards

34. 	The claimant did receive social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply. The following recoupment of benefit is therefore applicable in this case:-

           (a)	Monetary Award:				             £8,052.09

           (b)	Prescribed Element:				  £8,052.09

           (c)	Prescribed Period: 15 December 2008 to 15 June 2009  

           (d)	Excess of (a) over (b):                                          £ nil

AND the attached Recoupment Notice forms part of the decision.  Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing: 7 September 2009, Limavady and 24 September 2009,    Omagh and 6 October 2009, Omagh	

Date decision recorded in register and issued to parties: