THE INDUSTRIAL TRIBUNALS

CASE REF:	03830/09IT

CLAIMANT:			Kris Alexander McDermott

RESPONDENT:		Department of Finance and Personnel

DECISION
The unanimous decision of the tribunal is that:
 	(a) 	the claimant had not been unfairly dismissed and 
(b) 	that the claimant was not a disabled person for the purposes of the Disability Discrimination Act 1995.

By a majority the claimant’s claims for unlawful deductions from wages were dismissed.

Unanimously the tribunal considered that the claimant was entitled to receive an itemised
pay statement for the last two months of his employment with the respondent. 

Constitution of Tribunal:
Chairman:				Ms Crooke
Members:				Mr Adair
					Mr Wilkinson

Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr M Potter, Barrister-at-Law instructed by the office of the Departmental Solicitor.

The Claim and the Defence

1.	The claimant claimed that he had been unfairly dismissed and he had been discriminated against by reason of his disability, and that he had not received itemised pay statements and that he had suffered an unlawful deduction from wages.

2.	The respondent denied all these claims contending in its defence that the claimant  had been fairly dismissed on the grounds of his conduct and that he was not a disabled person for the purposes of the Disability Discrimination 1995.  The Department claimed that no unlawful deduction from wages had been made and that the claimant’s right to receive an itemised payslip did not arise under Article 40 of the Employment Rights (Northern Ireland) Order 1996 as the claimant had not actually received any wages.

Sources of Evidence

3.	The claimant gave evidence on his own behalf.  The following gave evidence on behalf of the respondent:-

Ms Valerie Campbell, Miss Bertha McWhinney, Ms Elaine McBriar and Mr Ryan Dobson.

4.	Additionally, there was an agreed bundle of documents before the tribunal.

The Relevant Law

5.	The relevant law in connection with the Disability Discrimination claim is Article 1 of the Disability Discrimination Act 1995 which says as follows:-

1.-(1)	Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out normal day to day activities.
6.	In relation to the claimant’s other claims in respect of the right not to suffer deductions, the right to receive an itemised pay statement and the right not to be unfairly dismissed, these are found at Articles 45, 40 and Article 130 of the Employment Rights (Northern Ireland) Order 1996.  Article 40 says:

(1)	an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay  statement.

(2)	the statements should contain particulars of:-

(a)	the gross amount of the wages or salary,
(b)	the amounts of any variable, and (subject to Article (1) any fixed deductions from that gross amount and the purposes for which they are made,
(c)	the net amount of wages of salary payable, and 
(d)	where different parts of the net amount are paid in different ways, the amount and method of payment of each part payment.  

Article 45 says:

(1)	an employer shall not make a deduction from wages or a worker employed by him unless – 

(a)	the deduction is required or authorised  to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or 

(b)	the worker has previously signified in writing his agreement or consent to the making of the deduction.

7.		Article 126

(1)	an employee has the right not to be unfairly dismissed by his employer.

Facts Found

8.	the claimant was employed by the respondent as a clerical officer in the Pensions Branch in Londonderry.

9.	At the time of termination of his employment, the claimant had seven completed years of service.

10.	The claimant gave evidence that he had a number of conditions and anyone of these individually or together could be regarded as constituting an  impairment for the purposes of the legislation.

11.	The conditions the claimant complained of were depressive illness, back pain, sleep apnoea and obesity.

12.	The claimant had brought a claim to the Industrial Tribunal in 2004 which was dismissed by the tribunal as being out of time.  The claimant’s reason for bringing this disability discrimination claim was that he had been refused a promotion/transfer out of the Pensions Branch on the grounds of his 9 months’ sick leave.

13.	The claimant had a history of making requests for part-time working to accommodate his other interests.

14.	The claimant was employed as a presenter with Q102.9 FM Limited (a radio station) from 8 December 2006.

15.	Although the claimant returned to work on a full-time basis, he made application to work part-time with the Department and this was subsequently granted.

16.	It came to the knowledge of the Department that the claimant had worked for the radio station during his sick leave.

17.	Upon the claimant’s return to work, he was required to attend a disciplinary investigation.  The claimant was interviewed by Mr Carl Oakman.  The reason why this disciplinary investigation was triggered was because members of Pension Branch including colleagues of the claimant had heard him broadcasting and felt upset by this.  In addition to actually working while on sickness leave the claimant was accused of not having notified his secondary employment to the respondent  and not having notified that he had been adjudicated bankrupt.  The report of Mr Oakman was considered by Ms Bertha McWhinney who decided to hold a disciplinary interview with the claimant.

18.	The disciplinary interview was held on 10 April 2008 and the claimant was accompanied by his Trade Union representative Mrs Wilma Stewart.  At the end of the interview Mrs McWhinney made a formal recommendation to Mr Ryan Dobson, the Establishment Officer to dismiss the claimant.  As a result the claimant was then entitled to attend an interview with Mr Dobson to make representations to him.  This interview was the equivalent of the Stage 1 meeting that is set out in Schedule 1 of the Employment (Northern Ireland) Order 2003.

19.	Mr Dobson endorsed the recommendation of dismissal and advised about appeal.  The claimant pursued an internal appeal which upheld the decision to dismiss the claimant and subsequently he had an external appeal with the Civil Service Appeal Board.  By a majority his dismissal was upheld.  The Civil Service Appeal Board upheld the claimant’s dismissal by a majority.

20.	The claimant did not advance any medical evidence in support of this claim to be a disabled person but he was interviewed by Doctor Tony McGread, a specialist of Occupational Medicine on 27 January 2010.

Conclusions
The Disability Claim

21.	In reaching its decision the tribunal has been assisted by the report of Doctor McGread.    The tribunal considered the following questions:-

(1)	Did the claimant have a physical or mental impairment?  Although the claimant’s most recent absence was due to back pain the issues considered by Doctor McGread were (1) depressive illness and (2) morbid obesity.

(2)	Did the impairment have an impact on his day to day activities in connection with the absence that was the subject of these proceedings between 29 August 2007 and 4 November 2007?  Doctor McGread saw no objective information to show that there was any actual impact from his medical health on his day to day activities.  He also did not see any objective evidence of the obesity impacting on the claimant’s day to day activities, as the claimant admitted that he could walk up to a mile at a time.

(3)	What was the extent of the impairment impacting on his day to day activities?  In the timeframe in question, there was no evidence that the impairments (both physical and mental) were impacting on the claimant’s day to day activities.  To the contrary, there was evidence that the claimant was functioning at a high level of capability if the demands of his work (as a Presenter) within the Radio Station were taken into account.  Furthermore, Doctor McGread regarded the sedentary work of being seated in a radio studio as being not significantly different from his sedentary role as an administrative officer which involves prolonged sitting dispersed with intermittent standing or walking indoors.

22.	Finally, the tribunal notes that the predominant reason for being absent between 29 August 2007 and 4 November 2007 was back related pain.  Yet apparently the claimant was still capable of working in the radio station.  Accordingly, the tribunal finds that the claimant has not proved that he is a disabled person for the purposes of the Disability Discrimination Act 1995.  While he might have had a physical and a mental impairment at some time in 2007, there was no evidence that the back pain was going to have any long-term effect and there was evidence that the claimant was able to undertake normal day to day activities in that he was able to take exercise.   Whilst the tribunal accepted that the claimant considered that he had sleep apnoea, there was no objective evidence of any quality to show what effects that might have had on the claimant’s memory or ability to concentrate.  Certainly, the claimant’s history as given to Doctor McGread, suggested that any effect his impairments had was not substantial.  Accordingly, the tribunal considers that the claimant has not proved that he is a disabled person and his claim fails.  Therefore, we are not going to consider the further claim of direct discrimination and discrimination by way of failure to make reasonable adjustments.

The Unfair Dismissal Claim

23.	Under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996, the first question to be asked is whether the dismissal of an employee is fair or unfair and in this connection the employer has to show the reason for the dismissal and that it is a reason falling within paragraph 2(2) of that Article.  We are satisfied on the evidence before us that the respondent has discharged this burden of proof and that the reason for the dismissal related to the conduct of the claimant.  The claimant was on documented sickness absence, yet he was heard by his colleagues in Pension Branch broadcasting under the auspices of a local radio station.

24.	In reaching its decision the tribunal has adopted the formulation of the guidance in misconduct cases given by Arnold J in the case of British Home Stores-v-Burchell set out in the case of Rogan-v-South Eastern Health and Social Care Trust [2009] NICA 47.

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

25.	Was there a belief in the particular form of misconduct?  Did the respondent believe and were there reasonable grounds for the respondent to believe that the claimant had been guilty of the particular form of misconduct which was the subject of his disciplinary charges?  The claimant was the subject of the following disciplinary charge:-

“During the period 29 August 2007 and 4 November 2007, while absent from work on sickness absence due to “recurring back pain” you worked as a “Radio Presenter/Producer” for Q102 Radio Station.  You failed to seek permission from the Department to engage in secondary employment as detailed in the NICS Staff Handbook” and “you failed to notify the Department that you had been declared bankrupt as detailed in “conduct chapter” of the NICS Staff Handbook, paragraph 1.19.1.”

26.	There can be no clearer evidence of the claimant being guilty of the misconduct alleged under the first part of the charge than the fact that the claimant was heard broadcasting by his fellow employees.

27.	This triggered an investigation and not only was the claimant interviewed but it was
confirmed with the radio station that the claimant had in fact worked during the time
period contemplated by the charge.  Accordingly, the tribunal considers that the respondent has established a genuine belief held on reasonable grounds in respect of the first part of the disciplinary charge.

28.	The claimant contended that the respondent was aware of his secondary employment and the respondent accepted that at some level in the local branch there was an awareness of the claimant taking various periods of part-time working to accommodate his outside interests.  However, the Department did not accept that this constituted notification of the secondary employment and the claimant agreed that he had not notified this employment.  The tribunal finds that the claimant did not properly notify his secondary employment.

29.	The Department became aware of the claimant’s bankruptcy by way of a Statutory
Notice inserted in a local paper.  Once again the claimant did not deny that he had been made bankrupt but indicated that he had failed to notify Establishment because his Solicitor had told him that his bankruptcy was going to be annulled.

30.	The tribunal finds that a reasonable employer seeing a notice of bankruptcy in the local media would be entitled to consider that the claimant had been bankrupt and was guilty of not informing the Establishment Officer of that fact.  However, the tribunal noted that on the application of the claimant filed 18 March 2008 an Order was made by Master Kelly, the Bankruptcy Master on Friday 23 May 2008 that the Bankruptcy Order was annulled and the effect of it was that the Bankruptcy Order ought not to have been made.

31.	Was there as much investigation as was reasonable in the circumstances of the case?  The tribunal considers that there was as much investigation as was reasonable in the circumstances of the case.  The tribunal noted that the claimant had some reservations about the report of Mr Oakman, but the tribunal did not consider that these were of any objective weight.  The investigation covered the charges and not only was the claimant interviewed but information about his hours of work and earnings was obtained from the radio station.  A notable feature of this case was that the claimant did not deny any of the misconduct but in respect of the first charge considered that this had been due to an “error of judgement”, in relation to the second charge he considered by reason of the fact of his applications for part-time working being approved that the Department was aware of his secondary job and thirdly that the Bankruptcy Order was always going to be annulled and so he did not need to report it.  In such circumstances (where this is an admission) a lesser amount of investigation can be sufficient.

32.	Did the respondent act reasonably or unreasonably in treating that reason as sufficient reason to dismiss the claimant?  We have found that the respondent had reasonable grounds for the belief it held in the guilt of the claimant and that belief had been reached after as much investigation as was reasonable in the circumstances.  In answering the question about the reasonableness of the respondent’s conduct we have considered the guidance of Mr Justice Brown Wilkinson in the case of Iceland Frozen Foods Limited-v-B Jones [1982] IRLR 439:-

“Since the state of the present law can only be found by going through a number of authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by Section 57(3) of the Employment Protection (Consolidation) Act 1978 is 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, although, 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 a dismissal falls outside the band it is unfair.”   

Applying the words of Mr Justice Brown Wilkinson to the current case, we consider that the decision of the respondent did lie within a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another (quite reasonably) take another.  We have perused the disciplinary procedure of the respondent and have found that the respondent is entitled to categorise the offence as serious misconduct.  The claimant was warned that the misconduct was of such seriousness that it could merit dismissal and he had the benefit of both internal and external appeals.  The tribunal accepts that the respondent was entitled to treat the charge of working whilst on sick leave as of sufficient seriousness to warrant the dismissal of the claimant.  The claimant was obtaining sick pay and working elsewhere and aside from anything else this was at the very least a breach of trust and confidence and it was understandable that the Department decided that he would be dismissed, albeit for a first offence.

The failure to provide itemised pay statements

33.	The respondent’s argument was that because it had withheld the claimant’s last two months of salary from him, the claimant was not entitled to receive a payslip under Article 40 as he was not going to actually receive any money and their payroll system did not print a payslip in these circumstances.  Given the evidence that the claimant had tax and NIC deducted from these last 2 months of salary, the tribunal does not accept that this was a case in which no payment was coming to the claimant because in the overall scheme of things those deductions would at the very least have been set to his credit in the taxation system and the National Insurance system.  Accordingly, the tribunal declares that the claimant did not receive payslips for the November and December months’ of salary and that the particulars that those payslips should have included were all those particulars set out in Article 40(2) of the Employment Rights (Northern Ireland) Order 1996 including the reason why the deductions from wages have been made, but we have not made any award in respect of the alleged unnotified deductions as we consider they were deducted in accordance with Article 46(1).

The Claim for Deductions from Wages

34.	The claimant claimed that the deduction from wages was illegal and excessive.  In
respect of this particular claim the majority felt that the deduction had been authorised by the claimant’s contract of employment and also considered the Article 46(1) of the Employment Rights (Northern Ireland) Order 1996 covered the circumstances of the case as the purpose of the deduction was reimbursement of wages that had been overpaid “(for any reason)”.   Clearly in this case the claimant had claimed sick pay when he was working in his radio job and this was what the respondent was trying to recoup.

35.	The minority decision was that the minority felt that the Establishment Officer Mr Dobson by a letter dated 17 October 2008 dismissing the claimant, gave him eight weeks pay in lieu of notice by virtue of the fact that as and from 17 October 2008 he was not to come to work but was to stay at home.   Effectively the claimant was put on “gardening leave”.  As a result, the minority considered that the claimant was entitled to have his pay in lieu of notice paid to him and that it was unlawful to have those monies deducted from his wages.  The minority further considered that Article 46(1) did not have any application to this case.  It was agreed between the claimant and respondent that the claimant’s last day of service was 12 December 2008, although he was required not to report for duty as and from 17 October 2008.

Chairman:

Date and place of hearing:	8, 10 and 12 February 2010, Belfast.		

Date decision recorded in register and issued to parties: