THE INDUSTRIAL TRIBUNALS   

CASE REF:    1923/11 

CLAIMANT:	Charlene Kelly

RESPONDENT:	Randox Laboratories Limited

DECISION

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Dr C Ackah
	Mr J E Martin

Appearances:

The claimant was represented by Mr Ben Wall, Barrister-at-Law, instructed by Gary N Daly Solicitors.

The respondent was represented by Mr Jacques Algazy, Queen’s Counsel, instructed by Elaine Torrens, Company Solicitor of the respondent.

SOURCES OF EVIDENCE

1.	The claimant gave evidence on her own behalf.  The following persons gave evidence on behalf of the respondent:-

Damian McAleer	-	In respect of the investigation.

Mandy Wright	-	In respect of the disciplinary hearing.

David Ferguson	-	In respect of the appeal hearing.

Cathy Kirk   	-	The Human Resources Officer
tasked to deal with this process.

	The tribunal also had a bundle of agreed documents before it and several other documents were introduced by agreement between the parties during the hearing.

THE CLAIM AND THE DEFENCE

2.	The claimant claimed that she was unfairly dismissed.  The respondent claimed that the claimant was fairly dismissed for insubordination which it categorises as gross misconduct in its disciplinary procedure.

3.	The sex discrimination element of the claimant’s claim was withdrawn on the day prior to the commencement of the hearing.

THE RELEVANT LAW

4.	The relevant law relating to unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 and the tribunal had particular reference to Article 130(2).

	In reaching its decision the tribunal also was referred to the following case law:-

British Home Stores Ltd  v  Burchell [1978] IRLR 379.

Iceland Frozen Foods  v  Jones [1982] IRLR 439.

Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23.

London Ambulance Service NHS Trust  v  Small [2009] IRLR 563.

Taylor  v  OCS Group Ltd [2006] IRLR 613.

THE FINDINGS OF FACT

5.	The claimant was employed by the respondent from 25 January 2010 to 27 May 2011 in the role of Chemist Scientist.

6.	The claimant was transferred to the department of Mr John Taggart on 4 October 2010.  This was as the result of the claimant participating in a competition that was also advertised externally.

7.	The evidence showed that the claimant had difficulties in this new department from the first day in her new post.

8.	On 23 November 2010 and 4 December 2010 the claimant was approached by her manager, Elourard Benick, enquiring as to her circumstances in employment.  There was a divergence in the evidence about the purpose of this enquiry, but it was not disputed that the approach was made to the claimant.

9.	The claimant had difficulties with the approach of her supervisor, Mr Taggart.  She disliked the way he spoke to her and his mannerisms.  She found him at times aggressive and dismissive, rather than being helpful or approachable.  She considered that her training needs were not being met and told him this on 8 April 2011.  She also informed the tribunal that he did not give her enough help or training in the job.

10.	The claimant, however, did not dispute that Mr Taggart gave her some training.   She disliked the nature of the training that was given and said that she did not want to have anymore one-to-one training sessions with Mr Taggart.  Mr Taggart asked the claimant and her colleague, Mr Conall McCullough, who was also being trained at that time, to undertake reading in their own time.  The claimant in her evidence to the tribunal said that she had other commitments, the importance of which she did not reveal to the tribunal but did not dispute that she indicated in the documents passed between the parties that she considered that it was contrary to labour law to require her to carry out work outside her normal working hours for which she was not paid.

11.	On her return to work after a period of absence the claimant spoke to Ms Cathy Kirk of the Human Resources Department to find out the procedure for putting in a complaint against Mr Taggart.  Ms Kirk described the procedures to the claimant.

12.	The claimant returned to work and was informed that Mr Taggart had made a series of complaints against her.  There was no date on the e-mail attachment which contained the substance of the four complaints but Ms Kirk indicated that it was received in or around 14 April 2011 from Mr Taggart.

13.	On 8 April 2011, the claimant had met with Mr Taggart and had assumed that the outcome of her discussion with him was that all her issues with him had been resolved.  Therefore, she was very shocked to receive the text of Mr Taggart’s complaint.  The common thread in these complaints was that the claimant was insubordinate to Mr Taggart.

14.	The claimant was interviewed by Mr Damian McAleer who was appointed as investigator of Mr Taggart’s complaint.  The investigation commenced on 14 April 2011 by him interviewing Mr Taggart, the claimant and the other witnesses named by Mr Taggart.  These were Mr McCullough, Mr McDonald and Ms Tirnaveneau.

15.	On the next day, 15 April 2011, the claimant was absent from work due to stress and did not return to work until 23 May 2011.

16.	During this period of the claimant’s absence from work Mr McAleer reviewed the allegations and determined that he considered the claimant’s behaviour to be insubordination amounting to gross misconduct and it should be referred to a disciplinary panel.

17.	The claimant returned to work on 23 May 2011 and her return to work interview was conducted by Ms Cathy Kirk and Mr Benick.  It had originally been the intention of the respondent to have her disciplinary hearing conducted on 24 May 2011, but granted a postponement of this hearing to the claimant, to give her more time to prepare and to seek representation.

18.	Ms Mandy Wright was tasked by Ms Kirk to conduct the disciplinary hearing.  The claimant was once more absent from work on account of sickness but returned on 27 May 2011 and the disciplinary hearing was conducted by Ms Wright at 9.00 am on that date.

19.	At the close of the disciplinary hearing the claimant asked what she should do and indicated that she felt uncomfortable returning to her working environment under her current supervisor.  She stated that she felt her laboratory was dangerous to work in under the current situation as nobody was talking to her.  The claimant did not return to her work station but once more went home on account of sickness.

20.	Following the disciplinary hearing, Ms Wright went through the notes, reviewed the investigation minutes and the minutes of the disciplinary hearing and she upheld the complaint that the claimant had been guilty of gross insubordination and decided that the claimant was to be summarily dismissed.

21.	The respondent’s handbook gives examples of the categories of misconduct and it included the term “serious insubordination” under the heading of examples of gross misconduct.

22.	The claimant appealed against this decision and she was required, by Ms Linda Magee of the respondent’s Human Resources Department, to clarify the grounds upon which she was appealing as she considered that her appeal letter read as the institution of a grievance.  The claimant wrote a further letter of appeal dated 17 June 2011.

23.	The claimant’s appeal was heard by Mr David Ferguson who was Sales Manager of the Randox Food Diagnostics Division.  The appeal was heard on 24 June 2011 at 9.00 am.  At the appeal the claimant confirmed that she did not wish to raise a grievance.  The claimant was asked for her version of events and she made a number of points in relation to each of the four incidents.

24.	The claimant was given the opportunity to explain why she felt uncomfortable receiving one-to-one training from Mr Taggart but did not give any details to the respondent at any stage of the process to enable it to investigate her allegations.   Details of the claimant’s complaints against Mr Taggart were given by her to the tribunal.  The claimant also considered that the investigation carried out by Mr McAleer was a “sham” because he did not interview every person in her department.  However, when challenged about this in the tribunal she was unable to say what additional evidence the two individuals she named could give.  The claimant also considered that her appraisals, her work record, contract of employment, her return to work interview notes and sick lines should have been taken into consideration by both the disciplinary and the appeal stages of the process.  However, when she was challenged on this point in cross-examination, she was unable to explain how having these documents before these two hearings could have altered the respective outcomes.

25.	Mr Ferguson upheld the dismissal.  While Ms Cathy Kirk attended the investigation meeting and the disciplinary hearing, her colleague, Ms Linda Magee, attended with Mr Ferguson at the appeal hearing.  A further complaint raised by the claimant was that both these representatives of the Human Resources Division also asked her questions in all three stages of the procedure.  The claimant considered that this was unfair because she felt that the Human Resources Department should act as a neutral entity.

26.	Mr Wall, on behalf of the claimant, also criticised the process on the grounds that Mr McAleer and Ms Wright appeared to have received no training into how to conduct the types of hearing with which they were asked to deal by Ms Kirk.   Ms Kirk was recalled and gave evidence of both Mr McAleer and Ms Wright being trained to conduct disciplinary process.

CONCLUSIONS

27.	We found that the claimant was dismissed on account of her conduct which amounted to gross misconduct within the terms of the respondent’s disciplinary procedure.  In considering a misconduct dismissal the starting point is the three-part test set out in the case of British Home Stores Ltd  v  Burchell [1978] IRLR 379.   This is as follows:-

		“(a)	first, the employer must establish that he or she believed that the employee was guilty of misconduct;

		(b)	second, the employer must show that he or she had reasonable grounds for so believing; and

		(c)	third, the employer must show that at that time he or she held that belief he or she had carried out as much investigation as was reasonable in all the circumstances of the case.”

28.	The tribunal accepts that the respondent employer did believe that the employee was guilty of misconduct and had reasonable grounds for doing so.  The respondent is a world leader in its field and requires that its employees work in a disciplined atmosphere and in a professional manner.  Mr Ferguson indicated that while employees are not required to study in their own time, many of them do as they wish to show themselves to be experts in the various matters with which they deal in accordance with their respective job titles.  Both Ms Wright and Mr Ferguson confirmed that the claimant worked in one of the most dangerous departments in the respondent’s organisation, in which good communication and proper behaviour were essential.  On the basis of the witness statements which supported Mr Taggart’s complaint, both Ms Wright and Mr Ferguson considered that the claimant was guilty of insubordination.  In the work environment in which the claimant operated, it was very important, not to say crucial, that work instructions were followed and training accepted with full cooperation being given by the trainees.  Upon reading the witness statements which the disciplinary and appeal processes had before them, the tribunal is unable to say that the respondent did not have reasonable grounds for believing that the claimant was guilty of the misconduct alleged.

29.	Was there as much investigation carried out as was reasonable in all the circumstances of the case?  The tribunal considers that the respondent interviewed everyone who was actually a witness to, or involved in, the events which led to the claimant’s dismissal.  The claimant at a number of stages said that it was for the respondent to interview everyone in the department but only revealed two additional names as candidates for interview in her cross-examination before the tribunal.  As the claimant was unable to indicate whatever evidence these work colleagues could have provided, the tribunal does not consider that their involvement was necessary to render the investigation reasonable.

30.	Mr Wall on behalf of the claimant criticised the process as a whole as the claimant’s appraisals, sick lines and return to work questionnaires, disciplinary records and statements from any other employees who had worked with the claimant (and the tribunal assumes that he did not restrict this category to persons solely within the claimant’s present department), were not before the various stages of the matter in the disciplinary process.  However, the tribunal was not able to discover from the claimant what difference these documents would have made.  While emphasis was put that it was unfair for Mr Taggart not to have carried out an appraisal of the claimant in March 2011, previous appraisals during her employment in the company showed that she did have previous difficulties with her supervisor in her previous department and generally her second appraisal showed performance that was towards the bottom end of the scale of acceptable achievement.  Given these documents, the tribunal does not understand what relevance the documents listed as being omitted from consideration could have had in the claimant’s disciplinary process.  The tribunal does not consider that their absence from consideration rendered the investigation one that was not reasonable.  Furthermore, if they were considered as mitigation, the tribunal also does not understand how a consideration of these documents would have prevented the claimant’s dismissal.

31.	Having considered the three-part Burchell test, the tribunal then must turn to consider whether the sanction of dismissal fell within the band of reasonable responses which a reasonable employer acting reasonably might have imposed.  In this connection it is important to consider the particular industrial circumstances of the respondent.  While the claimant’s behaviour looked at in the round might not in general terms have been considered serious enough to warrant dismissal, in the context of the respondent’s industrial situation, the tribunal accepts that dismissal was within the band of reasonable responses.  The claimant was working in a very dangerous department dealing with dangerous chemicals and raw materials.  The respondent considered that insubordination could also be categorised as causing a difficulty with Health and Safety although Mr Wall made the point that this issue was not made with the frequency it might have been during the process if this was what the respondent really believed.  

32.	The tribunal is supported in its conclusion that the claimant’s department was a dangerous department within which to work by the claimant’s own evidence.  After the disciplinary hearing she informed Ms Wright that she was uneasy about going back to work in her department as her situation would be dangerous in the Department due to lack of communication between herself and her colleagues.  In other words, no-one was speaking to her and she considered that that put her health and safety at risk.  This was the very point that the respondent considered as being of considerable importance.  The nature of the process that is conducted in the department requires communication and teamwork and a respect for the instructions given by the supervisor of the department.  The respondent considered that the claimant did not demonstrate these qualities.

33.	As part of the claimant’s description of her difficulties with Mr Taggart she informed the tribunal in her evidence that he was aggressive and on one occasion actually snatched a flask from her.  However, this was not put to any of the stages of the disciplinary process and indeed to the witnesses for the respondent as being evidence of Mr Taggart being guilty of the type of behaviour of which he complained in the claimant.  As the claimant failed to make this point, the tribunal considers that it was not as serious an example of Mr Taggart’s conduct as the claimant seemed to believe, otherwise she would have raised it with the respondent.  The tribunal noted that the claimant was repeatedly asked to explain Mr Taggart’s conduct and repeatedly asked during the disciplinary process whether she wished to take out a grievance against him and she indicated that she would not do this.

34.	The tribunal accepts that in the respondent’s industrial situation, dismissal for the misconduct alleged was within the band of reasonable responses that an employer in the respondent’s position might make to the situation which presented to it.

The question of procedural unfairness

35.	The tribunal noted the confirmation from Mr Wall that no question of statutory procedural unfairness arose.  However, he did indicate that he considered that the claimant’s dismissal was procedurally unfair on general grounds.  We do not agree and the reasons why we do not agree have been set out elsewhere in this decision but the tribunal has also noted Mr Algazy’s submission on behalf of the respondent based on Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996 and this provision states as follows:-

		“(2)	Subject to paragraph (1), failure by an employer to follow 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 if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

36.	The tribunal noted that Ms Wright’s opinion was that there was no alternative to dismissal and that Mr Ferguson concurred in that view stating that if there was a breach of procedural fairness (which he did not accept) he considered that the claimant would still have been dismissed because of her insubordination which amounted to gross misconduct in the context of the respondent’s industrial situation.  In the department in which the claimant was employed good communication and a respect for authority of the supervisor are paramount and he went further to say that he would not have accepted the claimant’s conduct in his department.

37.	As part of Mr Wall’s argument that a lesser penalty could have been imposed such as a warning or moving the claimant to another department, Mr Ferguson was firm in his evidence that the problem was not with the department in which the claimant was placed, the problem was with the individual and transferring departments was not an option.  For the reasons already stated, neither was the imposition of any form of warning (final or otherwise).

38.	As we have concluded that the claimant was not unfairly dismissed, it is unnecessary for us to consider the issue of whether or not she contributed to her dismissal.  Neither is it necessary for us to undertake any detailed consideration of the questions raised in the case of Polkey  v  A E Dayton Services Ltd, in the light of our conclusions on the issues raised by Article 130A(2) of the Employment Rights (NI) Order 1996.

Chairman:

Date and place of hearing:  5-7 March 2012, Belfast.

Date decision recorded in register and issued to parties: