O' Neill v Victim Support Northern Irelan... [2010] NIIT 6582

THE INDUSTRIAL TRIBUNALS

CASE REF: 6582/09

CLAIMANT: Stella Bernadette O’Neill

RESPONDENT: Victim Support Northern Ireland

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal:

Chairman: Ms D Elliott

Members: Mr E Grant

Mr D Walls

Appearances:

The claimant was represented by Mr Tommy Brownlee of NIPSA.

The respondent was represented by Mr Tom Sheridan of Peninsula Business Services Limited.

Reasons

1. Sources of Evidence

The tribunal heard evidence on behalf of the claimant from the claimant herself. The tribunal heard evidence on behalf of the respondent from Ms Jolene Welsh, Ms Kay Nellis and Mr Sam Cooke. The tribunal was provided with a bundle of agreed documents by the claimant and the claim form and response.

2. The Claim and the Defence

The claimant claimed that she had been unfairly dismissed. The respondent claimed that the claimant had been fairly dismissed for misconduct, after a proper investigation and disciplinary hearing carried out in accordance with the respondent’s own disciplinary procedure.

3. The Issue

The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent. The claimant was suspended following an allegation that she had discussed evidence with a witness. After an investigation and disciplinary hearing the respondent summarily dismissed the claimant for failing to follow company rules and procedures, namely the Court Code of Conduct. This conduct amounted to gross misconduct. The issue for the tribunal was whether the respondent had acted reasonably in treating the claimant’s conduct as a sufficient reason for dismissal and whether dismissal for that reason was fair.

4. Findings of Fact

4.1 The claimant was employed by the respondent organisation for four years as a Court Witness Co-ordinator from 15 November 2004 until 29 April 2009.

4.2 The respondent organisation provides support for victims of crime. This service is delivered through volunteers who provide emotional support to witnesses at court. The claimant had responsibility to ensure the delivery of the witness service within a designated area, which included Downpatrick, Newtownards, Newry and Armagh. In addition to other responsibilities, the claimant was expected to recruit, induct and provide necessary support to volunteers. The respondent organisation seeks to encourage an ethos of volunteering throughout the organisation and relies on trained volunteers to deliver the service to victims of crime.

4.3 On 24 October 2008 Margaret Farry, a volunteer, contacted Katherine McCrory, the Volunteer Development Officer. Mrs Farry raised a query in relation to her eligibility for an invite to a volunteer recognition event. Ms McCrory spoke to the claimant to clarify what communication had taken place regarding this event. Ms McCrory contacted Mrs Farry on 27 October 2008 by telephone, at which time she raised a number of concerns regarding her relationship with the claimant who was her
Co-ordinator with responsibility for her training and work shadowing. Mrs Farry complained in respect of communication issues and suggested that other volunteers were unhappy. Mrs Farry initially expressed some concern when she was advised that these issues would be taken further through investigation. As a result of the anxieties expressed by Mrs Farry, she was offered a transfer to another court location which she accepted. Geraldine Hanna, a Senior Manager, was advised of the content of the complaint and Jolene Welsh was appointed to investigate the matters raised.

4.4 Jolene Welsh, the Community Services Manager, arranged to meet Mrs Farry on 7 November 2008. During this meeting Mrs Farry raised various concerns which mainly related to communication issues. In addition Mrs Farry raised a complaint in respect of a day that she had spent in Bangor Courthouse. Ms Welsh noted her assertion that:-

“On the same day in Bangor, Stella spent the full day with one client, leaving Margaret sitting at the side and making tea and coffee. Throughout the day Stella discussed the full detail of the incident and pending court case with the client. Margaret felt very uncomfortable and felt that the whole conversation was gossip”.

4.5 As a result of this allegation, the claimant was suspended on full pay to allow an investigation to take place. The claimant was advised that an allegation had been made that she had failed to follow company rules and procedures, namely the Court Code of Conduct, having discussed details of evidence with a witness who was preparing for a forthcoming trial. The respondent considered that suspension was necessary in light of the serious nature of the allegation. The Court Code of Conduct emphasises the importance of informing witnesses that evidence should not be discussed and that witnesses should be informed that any evidential matters are to be directed to the officer in charge of the case.

4.6 Ms Welsh met with the claimant on 12 November 2008. A note taker was in attendance. The claimant was invited to respond to the minutes and written feedback was received on 5 December 2008. The final minute of the meeting incorporated the comments from the claimant. Ms Welsh interviewed both staff and volunteers in relation to the other allegations.

Ms Welsh then proceeded to prepare an investigation report. The report concluded that the claimant had spoken to a client about her case and did not think it was appropriate to stop her. The report recommended that these matters proceed to a disciplinary hearing.

4.7 The respondent appointed a Disciplinary Panel. The members were Paul Simpson, the Chair of the Board of Trustees and Kay Nellis, a member of the Board of the respondent organisation. The allegation of having discussed evidence was dealt with at the Disciplinary Hearing. The claimant was also alleged to have failed to follow procedures. A number of other matters relating to communication were dealt with in a separate capability hearing.

The minutes were recorded by dictaphone. The claimant and panel members were provided with a large number of documents prior to the hearing, these included witness statements and the records of any investigation meetings. The claimant was informed that she could call witnesses if she wished to do so. The claimant was also entitled to be accompanied by her union representative. The Disciplinary Hearing took place on 2 March 2009.

4.8 The Disciplinary Panel subsequently met with Margaret Farry on 9 March 2009. Mrs Farry was invited to take time to reflect and provide any additional information to the panel. On 12 March 2009 Lisa Garvey, the Human Resource Manager of the respondent organisation, received a telephone call from Mrs Farry. Mrs Farry provided additional information in relation to dates and also further detail of the conversation which had taken place between the claimant and a client at Bangor Court on 15 October 2008.

This information was communicated to the Human Resource Manager by Mrs Farry during a telephone conversation on 12 March 2009. The information was then forwarded to the Disciplinary Panel at the request of Mrs Farry. It was communicated by e-mail from Lisa Garvey on 12 March 2009. The Disciplinary Panel reconvened on 6 April 2009. The claimant had been provided with a copy of the minutes of the meeting on 9 March 2009 when the Disciplinary Panel met with Margaret Farry. The claimant was also provided with a copy of the e-mail of 12 March 2009.

The claimant was invited to respond to the additional information provided by Mrs Farry. Subsequently Mrs Farry forwarded her information with minor amendments by email on 8 April 2009, requesting that it be forwarded to the Disciplinary Panel. The content remained unchanged with only minor alterations. The claimant had been given the opportunity to respond to this additional information at the hearing on 6 April 2009.

4.9 The Disciplinary Panel issued their decision by letter dated 29 April 2009. The Panel highlighted that the most serious matter of concern was the allegation that the claimant had failed to apply the Court Code of Conduct. The Panel indicated that it considered the claimant’s explanations to be unsatisfactory. The letter set out the basis on which the Panel considered them to be unsatisfactory in five bullet points. The Panel further addressed the concerns raised by the claimant and her representative in respect of the additional information provided by Mrs Farry prior to the reconvened Disciplinary Hearing on 6 April 2009.

The Panel addressed the fact that the claimant’s conduct could result in the contamination of the evidence and was in breach of the respondent’s policy and procedures. The Panel stated that this amounted to gross misconduct and in consequence the claimant was summarily dismissed. The claimant was advised of her right of appeal.

4.10 The claimant advised of her intention to appeal by letter dated 30 April 2009. The ground of the appeal was the undue weight given to the unsubstantiated evidence of Margaret Farry. The claimant suggested that Mrs Farry was untrustworthy and that her evidence was unreliable. The claimant also objected to Mrs Farry being interviewed subsequent to the Disciplinary Hearing on 2 March 2009. The claimant described this meeting as a “separate hearing”. The claimant further challenged the decision of the Disciplinary Panel to accept “new evidence” after that date from Mrs Farry.

The respondent appointed an Appeal Panel. The Panel was chaired by Sam Cooke and his colleague Judy McCormick from the Board of Trustees. The claimant was accompanied by her union representative at the Appeal Hearing. The Appeal Panel considered the issues raised by the claimant. The claimant was informed of their decision by letter dated 8 June 2009. The Panel was of the opinion that the appeal was not valid and rejected the claimant’s appeal thereby upholding the decision of the Disciplinary Panel.

4.11 The claimant made the following complaints as pleaded in her claim form:-

(a) there was a failure to properly investigate the allegation, in that the investigating officer did not attempt to discover any detail around the allegation from Margaret Farry.

Mrs Farry was a volunteer within the respondent organisation. The claimant was her Co-ordinator. The background to the complaint made by Margaret Farry is set out at paragraph 4.3 of this decision. The claim form states that “at no time did the investigating officer try and discover any details”. As set out at paragraph 4.6, Ms Welsh met the claimant on 12 November 2008 for the purpose of an investigation meeting. A note taker recorded detailed minutes to which the claimant added feedback. At page 13 of the final record of this meeting it is noted that the claimant “started to raise questions about the evidence”, that is the evidence it was alleged she had been discussing with the witness in Bangor Court.

The minute records:

“Jolene explained for confidentiality that she didn’t want to know about

evidence”.

At the tribunal hearing Ms Welsh was questioned about this aspect of her investigation. Ms Welsh gave evidence that she had asked Mrs Farry to provide examples of what she was complaining about. Ms Welsh stated that when the Bangor incident was raised she knew immediately that this was something that should not happen and that this conduct created a risk to the organisation and the possibility of damage to the prosecution. Ms Welsh gave evidence that whilst she knew that it was wrong, she thought that she needed guidance from her line manager and other members of the team, around the issue of the discussion of evidence to be heard in court.

Ms Welsh stated that she did not want to ask too much, as this was an active court case. Ms Welsh believed that she needed this guidance as the case was still ongoing having been adjourned that day at court. Ms Welsh confirmed that she had spoken to her line manger, Geraldine Hanna, who confirmed the level of risk involved. Ms Welsh added that in her role in community services that she did not have the same level of knowledge of the delivery of witness services by the volunteers at courts. However, Ms Welsh stated that she knew that this was the number one rule in the organisation. It was therefore considered appropriate and necessary that the claimant be suspended during the investigation.

Ms Welsh gave evidence in respect of the conclusions reached by her in her investigation and the recommendations made in her report. Ms Welsh concluded that the claimant had discussed details of a pending case.
Ms Welsh noted in her report that:

“my main concern from this is that Stella failed to stop a client discussing sensitive information, as Stella should be doing this as part of her role as a Co-ordinator and coaching her volunteers as per the Court Code of Conduct.”

The tribunal considered the documentation and evidence in relation to the investigation conducted by Ms Welsh. The tribunal concluded that it may have been preferable for the investigation to have clarified any additional details at the outset, when memories are fresh. Ms Welsh explained her reasons for the approach that she had taken. The claimant described the disciplinary process as flawed. The tribunal considered that the investigation was fair. The test is one of reasonableness on the part of the respondent.

4.12 (b) The claimant’s claim form states that the Disciplinary Panel acted outside their remit.

(i) The claimant and her representative indicated to the Disciplinary Panel on 2 March 2009 that Margaret Farry’s complaint did not detail the content of the evidence to be given by the witness. During the Disciplinary Hearing on 2 March 2009 the claimant raised matters which were intended to challenge the accuracy of Mrs Farry’s statement. The claimant pointed out that Mrs Farry had not mentioned that there were two other witnesses in the room. During the hearing, Kay Nellis indicated that these matters could be put to Mrs Farry for her to comment on same. The minute of this hearing records the claimant’s request for clarity and specific information in relation to Mrs Farry’s assertion that evidence had been discussed.

Kay Nellis further gave evidence to the tribunal that at the outset she had not requested the opportunity to speak to Mrs Farry. Ms Nellis stated that it was not necessarily the content of the conversation with the witness that was important. Ms Nellis gave evidence that she was more interested in the claimant’s technique for stopping a witness in that situation.

(ii) At the reconvened Disciplinary Hearing on 6 April 2009 the Panel informed the claimant that the process within the respondent organisation was that the two Board Members would review the evidence after the Disciplinary Hearing. In this case the panel had considered the documentation and the evidence. The Disciplinary Panel considered that there were a number of specific matters which they considered it necessary to put to Margaret Farry, in relation to one particular issue. As a result the panel subsequently met with Mrs Farry and sought further information from her.

The respondent’s evidence was that the function of the reconvened Disciplinary Hearing was to allow the claimant to respond to any additional information which had been provided by Mrs Farry. The claimant’s case was that the Disciplinary Panel were acting outside their remit by conducting their own investigation.

The tribunal considered the authority of Santamera v Express Cargo Forwarding t/a IEC Ltd [2003] IRLR 273 EAT. In that case the Disciplinary Panel conducted subsequent interviews with witnesses to confirm a particular aspect of the witness statements. The decision in this matter considers criticism of the employer for not putting the matters raised by the claimant to the witnesses.

The decision states that:-

“Whilst, in order to be fair, it is incumbent on an employer conducting an investigation followed by a Disciplinary Hearing both to seek out and take into account information which is exculpatory as well as information which points towards guilt, it does not follow that investigation is unfair overall because individual components of an investigation might have been dealt with differently, or were arguably unfair”.

The question for the tribunal is whether, in all the circumstances, the investigation as a whole was fair. The Disciplinary Panel met with Mrs Farry and put the points raised by the claimant to her for her comments. Mrs Farry was asked to reflect and provide any additional detail. The claimant was given an opportunity to comment on any additional statements from Mrs Farry. The tribunal does not consider that the Disciplinary Panel acted outside its remit in deciding to interview Margaret Farry.

4.13 (c) (i) The claimant further complained about the failure of the respondent to call Mrs Farry as a witness at the first Disciplinary Hearing.

At the reconvened Disciplinary Hearing Kay Nellis reiterated the fact that the claimant had been invited to call any witness to the hearing but had chosen not to call Mrs Farry. The Disciplinary Panel did not want to call Mrs Farry as a witness. The panel did not consider that it was necessary. In addition the minute of the meeting records Mrs Farry’s reluctance to be involved in the Disciplinary process.

Kay Nellis gave evidence that she formed the view that Mrs Farry was genuinely very unwilling to be part of the investigation. Ms Nellis further stated that in light of the fact that Mrs Farry was a volunteer she could not be compelled to attend any Disciplinary Hearing by the respondent, unlike an employee who could be compelled to attend. Mrs Farry had expressed her reluctance from the outset. During her contact with Katherine McCrory on 27 October 2008 she stated that, “her life would be made hell” with the claimant and that she would be very uncomfortable working with her again. Mrs Farry had also expressed her anxiety about addressing any issue directly with the claimant and had considered leaving the organisation.

The Disciplinary Panel concluded that Mrs Farry was genuinely anxious about her involvement. In light of the fact that she was a volunteer, rather than an employee, there were issues around the ability of the respondent to compel her attendance. The Disciplinary Panel were mindful of this factor and the implications of this issue.

(ii) The claimant requested that Mrs Farry be required to attend the Appeal Hearing on 22 May 2009. The respondent advised Mrs Farry of this request on behalf of the claimant. The respondent did not accept that the claimant was entitled to cross-examine Mrs Farry. Mrs Farry indicated in writing that she would not be attending as she felt that she had had enough stress and upset already and did not feel that she should give any more time to the matter. The claimant was invited to provide a list of questions which the claimant would like the respondent to put to Mrs Farry. The claimant chose not to take advantage of this opportunity.

The tribunal considered the authority of the Santamera case (as previously referred to) and Ulsterbus Ltd v Henderson [1989] IRLR 251 NICA. The claimant sought to secure the attendance of this witness for the purposes of cross examination to test her credibility. The claimant relied on the LRA guidelines and the laws of natural justice.

The decision in Santamera v Express Cargo Forwarding states:-

“There was no rule of law which rendered it incumbent on an employer, when dismissing an employee for misconduct, to arrange a hearing which gives the employee who is liable to be dismissed the opportunity to cross examine the person making the complaint.”

The EAT did not exclude the possibility that there will be cases in which it would be impossible for an employer to act fairly or reasonably unless cross-examination of a particular witness is permitted.

The EAT stated that:-

“The question, however, in each case is whether or not the employer fulfils the test laid down in British Home Stores v Burchell, and it will be for the tribunal to decide whether or not the employer has acted reasonably, and whether or not the process has been fair.”

(iii) The tribunal noted that the respondent considered that it was unable to compel the attendance of Mrs Farry who was a volunteer. The respondent requested that the claimant provide a list of questions, however the claimant did not avail of this invitation. The tribunal, having considered all the evidence before it, concluded that the respondent acted reasonably in all the circumstances despite the fact that Mrs Farry was not called as a witness at the first hearing and did not attend the Appeal Hearing as requested by the claimant.

4.14 (d) The claimant suggests that undue weight was given to Margaret Farry’s evidence. The claimant also criticises the means by which it was collected.

The Disciplinary Panel informed the claimant of its decision by letter dated 29 April 2009. The basis on which the Panel reached its decision is set out in five bullet points. The Panel has highlighted the claimant’s explanations in response to Margaret Farry’s allegation. The letter indicates that the Panel’s belief has been informed by the claimant’s response. This was reiterated by the evidence of Kay Nellis, who stated that her concern was heightened by the content of the claimant’s response to the allegations made by Mrs Farry.

Both the Disciplinary Panel and the Appeal Panel set out their reasoning, in doing so they highlighted the specific aspects of the claimant’s evidence which informed the basis for their belief that the claimant had discussed evidence with the witness prior to her case being heard.

The tribunal does not accept the claimant’s assertion that undue weight was given to Margaret Farry’s evidence. Again the test is whether or not the employer has acted reasonably and whether or not the process has been fair. The tribunal formed the view, having considered all the evidence, that the disciplinary process was fair and reasonable in this respect. There had been a full investigation, the claimant had been given an opportunity to respond and this amounted to a fair hearing.

4.15 (e) The claimant complained in respect of the means by which Margaret Farry’s evidence had been collected.

(i) The tribunal heard evidence from Jolene Welsh as to why she did not seek greater detail as set out in paragraph 4.3 of this decision.

(ii) At the reconvened Disciplinary Hearing on 6 April 2009 the Panel advised the claimant of the background to their meeting with Mrs Farry on 9 March 2009. The claimant was advised that Mrs Farry had simply been asked to attend and was given no prior notice of the specific area of concern to the Panel, that is the Bangor incident. The Panel therefore felt that the request from Mrs Farry for time to reflect was perfectly reasonable. Kay Nellis gave evidence that she encountered a volunteer who was very reluctant to become involved in the process. Mrs Farry was however advised that regardless of her involvement the matter was being taken “seriously” and would not be “dropped” or dealt with informally.

Kay Nellis gave evidence that Mrs Farry entered the room upset and agitated and therefore they could not immediately launch into the investigation. Mrs Farry presented as being frightened in challenging the claimant and was deeply upset by the process to that date. Ms Nellis stated that because of the delay in time since Mrs Farry had made her initial statement, that she had not “revamped herself or reconsidered the details”. The other allegations related to the capability hearing and did not form part of this meeting. The Panel explained the process to Mrs Farry and advised her that the only allegation that they wished to address related to the Bangor incident. The meeting lasted over one hour and Ms Nellis described it as “stop start”.

In light of the presentation of Mrs Farry, who appeared agitated, the Disciplinary Panel were amenable to inviting her to reflect and return to them thereafter with exact dates and any other details which could be put to the claimant.

(iii) The Appeal Panel addressed this issue in their decision letter dated 8 June 2009 by reference to the LRA code, which acknowledges that memories can fade with time. In these particular circumstances, the Appeal Panel considered it reasonable for Mrs Farry to be unable to remember all the details on the date of her meeting with the Disciplinary Panel. The Appeal Panel noted that the additional information provided by Mrs Farry “did not in essence alter the event from that first reported to the investigation meeting of 7 November 2008”.

In addition, the Disciplinary Panel had also noted the remarkable similarities in relation to the content of the conversation e.g. the witness’s house, dog, daughters and the length of time spent with the witness (in or about five hours). The Disciplinary Panel set out these matters in its decision letter dated 29 April 2009.

The tribunal formed the view that, in all the circumstances of this case, it was not unreasonable for the Disciplinary Panel to consider the additional evidence from Margaret Farry. The claimant was afforded the opportunity to respond at length. At the Appeal Hearing stage the claimant was invited to forward a list of questions which could be put to Mrs Farry. The claimant did not take advantage of this opportunity.

4.16 (f) (i) The claimant suggested in her claim form that there was a lack of clarity as to what does and does not constitute evidence. In addition, there is no definitive list and both Panels made assumptions on the issue. The claimant further commented that there is no training given on how to deal with the issue of evidence.

This suggestion was refuted by the respondent. The Disciplinary and Appeal Hearings were lengthy. The Disciplinary Panel expressed concern in relation to the matters raised by the claimant in her response. A number of the most concerning responses are contained in the disciplinary letter. At bullet point three, the Disciplinary Panel highlight the claimant’s distinction that there is a difference between hearing and discussing the evidence. The Panel did not accept that argument. The respondent’s case was that this position would be incompatible with organisational policy and procedure. The respondent’s policy is that neither staff nor volunteers must have any involvement in discussions with witnesses regarding evidence before it is given in court, whether that be hearing or discussing the evidence.

(ii) During the Disciplinary Hearing on 2 March 2009 the claimant asked Kay Nellis “what is evidence?”. Ms Nellis indicated that this was exactly what she was trying to get to. The minutes of the Disciplinary Hearing were recorded and note the claimant as stating:-

“Evidence is matters of fact matters of fact a case I have looked up a definition even which is something Victim Support has never done, evidence is a matter of fact as proof of an issue in a law suit.”

The claimant continued:-

“Where a case is cause for legal action so I know what the case is but I don’t know anything of the evidence.”

At the tribunal hearing Kay Nellis stated that this comment concerned her as the definition was not applicable in the context of the respondent’s work with victims of crime and witnesses in the criminal courts. It was apparent during the disciplinary process that the claimant considered there to be a distinction between listening to and discussing evidence.

The Disciplinary Panel expressed concern in the disciplinary letter that the claimant was not following procedures and furthermore the Panel could not be assured that the claimant was professionally mentoring and instructing the volunteers under her supervision. The claimant had responsibility for training, mentoring and supervising volunteers. In light of the uncertainty expressed by the claimant, the Panel expressed grave concerns about the claimant’s ability to fulfil this role. All the witnesses called by the respondent expressed grave concern about the impact on the organisation of any deviation from the Court Code of Conduct.

The tribunal noted that the code is very clear and unequivocal in that it states that witnesses must be informed that evidence should not be discussed. In addition both staff and volunteers must endeavour to ensure any such discussion does not take place.

The tribunal further noted the claimant’s suggestion that training was required on how to deal with the issue of evidence. The claimant’s role as Co-ordinator was an important role within the respondent organisation. The tribunal did not accept the assertion that training was required by the claimant. The respondent expected the claimant to provide such training to volunteers. The tribunal considered the respondent’s expectation of the claimant, in her role as a
Co-ordinator, to be reasonable. The tribunal considered the concerns expressed by the respondent in this respect to be genuine and well founded.

The tribunal did not accept the claimant’s assertion that the Panels made assumptions on this issue. The Disciplinary Panel investigated the issue in detail before reaching a conclusion based on the claimant’s explanations during the Disciplinary Hearing.

4.17 The disciplinary letter highlighted the matters relied on by the Disciplinary Panel in reaching their conclusion. In her evidence to the tribunal Kay Nellis highlighted the responses which caused her concern during the Disciplinary Hearing.

(a) The claimant indicated that the witness was a self referral therefore she would have known who she was meeting and what the case was about. The claimant stated that a pre-trial visit was not appropriate and unnecessary as the witness had been to court before. The Disciplinary Panel noted that a witness would be advised during a pre-trial visit that evidence cannot be discussed. The Panel therefore concluded that at no point was the witness advised that the claimant could not discuss evidence. This should have been addressed at the outset with the witness by the claimant.

The claimant suggested to the tribunal that she may have known what the case was about prior to attending court. The claimant entered into a discussion relating to the witness losing money on her house. The Disciplinary Panel formed the view that this was dangerously close to the issue of a dispute with a neighbour. The information provided by the self referral could have put the claimant on notice in relation to this area of discussion, that is in the event that she was aware it was a dispute involving a neighbour. The Disciplinary Panel noted that such a dispute could possibly involve a previous court case and therefore harassment or ongoing difficulties. The claimant stated that the fact that the witness had taken a similar case before was not evidence.

The claimant stated that it was “just a mention” regarding the witness having been in court before and the depreciation in the value of her house. However it appeared to the Disciplinary Panel that the witness addressed this in terms of her previous court applications. The claimant was adamant that she did not discuss evidence with the witness and in fact did not know what the evidence was and nor did Margaret Farry. The claimant conceded that her contact with the witness was in or about five hours duration, during which time a number of topics were discussed.

(b) The claimant stated during the Disciplinary Hearing:-

(i) the witness was not the sort of person that she would have put up a barrier to;

(ii) in addition that she knew from experience that the witness was one of those women who would fly off the handle and she would lose any rapport. As a result the claimant would then be just another perfunctory;

(iii) the claimant further stated that she did not say to the witness;

“Look before you start here we are”

and added,

“because that is not how I felt that woman operated so subtly I

found out from her what her situation is and so on and so forth”.

(c) Kay Nellis suggested that the history in relation to the witness may touch on the hearing in Bangor Court. The claimant advised that she moved the conversation on. The claimant indicated that the witness was very unusual in that she was extraordinarily wound up and that she gave the impression that she would have given the claimant a blast. The claimant did not want to destroy any rapport that she had with the witness.

(d) The Disciplinary Panel examined in detail the discussion which took place and the mechanism used by the claimant to divert or redirect the witness, in accordance with the policies of the respondent. The claimant discussed a scenario where she informed a witness that she could not talk about the evidence and the witness insisted on continuing to talk thereafter.

The claimant then stated that she did not have a portcullis to say “right you are not talking about this evidence, out of this room”. The claimant indicated that instead she would redirect the witness. Kay Nellis gave evidence to the tribunal that the respondent provides training for its volunteers to deal with this eventuality and expects them to be assertive in this situation. Ms Nellis stated that the respondent emphasised that the priority was to stop the witness and to avoid any contamination of the evidence.

(e) The claimant indicated that she did not accept that one could distort the evidence by hearing it. The claimant pointed out that the Code of Conduct states do not discuss rather than do not hear the evidence. The claimant also stated that she was unsure as to whether the parties being in court before was “evidence”.

(f) Kay Nellis expressed concern about the risks involved in the claimant getting close to dangerous territory and sought the claimant’s views on the risks of the claimant’s technique for managing the situation, especially in light of the foregoing response from the claimant as set out at paragraphs 4.17(b), (c), (d) and (e) above.

The claimant remained adamant during the reconvened Disciplinary Hearing that she did not discuss evidence. The claimant indicated that she would not put up a barrier to someone who is very nervous, as it was her job to reassure the person and make them feel relaxed. The claimant stated that the witness remained tense for the entire day and indicated her fear of the defendant. The claimant did not want to push the lady or be negative towards her and relied on her judgement based on experience.

The Disciplinary Panel addressed the events of 15 October 2008 at Bangor Court in considerable detail with the claimant, who was afforded an opportunity to respond and state her case.

4.18 The Disciplinary Panel set out the basis of its conclusion that the claimant’s explanations were unsatisfactory. The five bullet points addressed the issues arising during the Disciplinary Hearing. These included:-

(a) the claimant’s way of dealing with a witness who may be disclosing evidence;

(b) the claimant’s distinction between hearing and discussing evidence which was unsatisfactory;

The Disciplinary Panel noted that the detail provided by Margaret Farry was remarkably similar to that provided by the claimant e.g. the witness’s house, dog, daughters, length of time spent with the witness and the history. The only exception being the issues relating to the discussion of evidence.

The Disciplinary Panel stated that Margaret Farry had provided what appeared to be the detail surrounding the discussion of evidence with the witness. As a result, the Disciplinary Panel indicated that they had a reasonable belief that the claimant did indeed discuss evidence with the witness and did not make sufficient efforts to stop the witness at any time. The Disciplinary Panel concluded that it appeared that the claimant had sought information by asking questions.

The Disciplinary Panel concluded that the claimant had failed to convince the Panel sufficiently that she did not discuss evidence with the witness prior to her case being heard. The Disciplinary letter stated that this amounted to gross misconduct as this violated a core principle of the organisation. The letter did not elaborate on this particular aspect, that is by setting out why this amounted to gross misconduct. However the evidence given to the tribunal by the witnesses for the respondent elucidated this aspect considerably.

4.19 The claimant refers in her claim form to the penalty for major misconduct. It is not for the tribunal to substitute its penalty for that of the employer. However the tribunal would acknowledge that dismissal was the appropriate penalty for gross misconduct. The tribunal noted that the claimant remained of the view that she had done nothing wrong and believed that she had handled the situation well. The respondent confirmed that there had been no previous similar incidents of such misconduct within the organisation.

4.20 The Appeal Panel dismissed the claimant’s appeal by letter dated 8 June 2009, having held an appeal meeting on 22 May 2009. The Panel indicated that they were not in a position to make any presumptions as to whether Mrs Farry had a grudge against the claimant. The Panel examined the background of the initial complaint and ultimately expressed itself completely satisfied with the explanation for the additional information supplied by Mrs Farry. In addition the information did not in essence alter the event first reported by Mrs Farry in the investigation meeting on 7 November 2008.

To ensure fairness the Panel reviewed the various documents relating to the Bangor incident. The Appeal Panel concluded that there was sufficient evidence provided by the claimant on 12 November 2008 and 2 March 2009 to convince the investigator and the Disciplinary Panel to have a reasonable belief that the claimant did discuss evidence with the client, that is the witness.

The Panel referred the claimant to the investigation report where she stated that evidence is about the incident and that the claimant had discussed previous incidents. The Panel noted that the witness had attended court on a number of previous occasions which were related to her ongoing dispute with a neighbour. As a result, the Appeal Panel considered that any discussion of any part of the case would in fact be a breach of the Court Code of Conduct. The Appeal Panel concluded that the discussion of any part of the case or linked cases past or present could therefore have an impact on the client and may influence what they say in court. In light of the foregoing the appeal was rejected. The Appeal Panel upheld the decision of the Disciplinary Panel and advised the claimant by letter dated 8 June 2009.

4.21 The tribunal, having considered all the evidence, concluded that the respondent entertained a reasonable suspicion amounting to a belief in the guilt of the claimant of the misconduct. The tribunal concluded that the respondent established the fact of that belief and did believe it. The tribunal further concluded that the respondent had reasonable grounds upon which to sustain that belief.

In addition, the tribunal formed the view that the respondent at the stage at which it 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.

The test being reasonableness in this matter.

5. Law and Conclusions

Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 states:-

“An employee has the right not to be unfairly dismissed by his employer”.

Article 130(1) of the 1996 Order requires that:-

“In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(a) the reason (or, if more than one, the principal reason) for the dismissal; and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

The tribunal having been satisfied that the respondent had discharged the two burdens under Article 130(1) and (2), Article 130(4) requires that:-

“the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-

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

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

In this case the claimant was dismissed for a potentially fair reason.

The tribunal is required under Article 130 to ascertain whether the respondent acted reasonably. The tribunal is not entitled to substitute the conclusions it would have reached for those of the employer.

The tribunal found the case of British Home Stores v Burchell [1978] IRLR 379 to be of assistance where it states:-

“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair the Industrial tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.

This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And, third, that the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

In J Sainsbury plc v Hitt [2003] IRLR 23, this approach was approved by the English Court of Appeal as best reflecting the approach to be taken by tribunals in assessing misconduct cases.

The tribunal concluded, as set out previously, that the respondent had a firm belief that the claimant had breached the Court Code of Conduct and discussed evidence with a witness. This fell within the definition of gross misconduct in the respondent’s disciplinary code. This was a breach of the core tenet of the organisation. The respondent believed that this conduct threatened to undermine its operations and credibility.

The claimant complained of defects in the investigation and disciplinary process and described them as “flawed”. This would relate to the third element of the Burchell test. The tribunal was satisfied that the respondent had carried out as much investigation as was reasonable in the circumstances.

The tribunal concluded that the Disciplinary Panel acted reasonably in finding the claimant guilty of gross misconduct, having reasonable grounds on which to sustain this belief. The tribunal further concluded that the Appeal Hearing gave the claimant a fair hearing. The tribunal therefore concluded that the investigation and disciplinary hearings were conducted as fully and fairly as could be expected of the respondent, the test being reasonableness.

The tribunal, having satisfied itself as to the reasonableness of the process carried out, went on to consider whether the respondent acted reasonably or unreasonably in treating the conduct of the claimant as a sufficient reason to justify her dismissal. It is not for the tribunal to decide whether it would have imposed a lesser penalty than that imposed by the respondent. The question of the reasonableness of the sanction of dismissal was considered in Iceland Foods Limited v Jones [1982] IRLR 439:-

“(1) the starting point should always be the words of [Article 130(4)] themselves;

(2) in applying the Article an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they, the members of the 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 may take one view and another quite reasonably take another;

(5) the function of the Industrial Tribunal as an industrial jury is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.”

The respondent’s Code of Conduct contains a list of rules covering gross misconduct. The list contains examples but is not exhaustive. The list includes taking part in activities which result in adverse publicity to the respondent. The dismissal letter did not elaborate on why the claimant’s conduct amounted to gross misconduct. However at hearing the respondent addressed this issue through the witnesses called on its behalf. This evidence clearly addressed why this conduct amounted to a fundamental breach of the respondent’s most important principle and core tenet. The witnesses gave evidence as to the reasons why this amounted to fundamentally more serious conduct than what would fall within the category of major misconduct.

The respondent’s case was that this conduct had the potential to undermine the respondent’s work and that it did not therefore fall within the range of major misconduct, as suggested by the claimant in her claim form. The respondent also considered the claimant’s conduct in light of her role as a Court Witness
Co-ordinator with responsibility for training volunteers. The claimant demonstrated during the disciplinary process that she did not acknowledge any fault in her conduct. The respondent did not consider the claimant to be simply failing to carry out a reasonable instruction or follow rules and procedures as claimed by the claimant. The tribunal heard evidence from the respondent addressing this issue and accepted the respondent’s arguments as reasonable in all the circumstances of this case.

The tribunal, having considered all the evidence and submissions, concluded that the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.

The dismissal was therefore fair and the claim must fail.

Chairman:

Date and place of hearing: 18-19 March, 12-13 April and 19 May 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O' Neill v Victim Support Northern Irelan... [2010] NIIT 6582_09IT (05 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/6582_09IT.html Cite as: [2010] NIIT 6582_9IT, [2010] NIIT 6582_09IT

Industrial Tribunals Northern Ireland Decisions