THE INDUSTRIAL TRIBUNALS

CASE REF:    1152/13

CLAIMANT:	Adam McCalden

RESPONDENTS:	1.	HBOS Plc
	2.	Lloyds Banking Group (Bank of Scotland Plc)

DECISION

The claimant was fairly dismissed.

Constitution of Tribunal:

Chairman:	Mrs A Wilson

Members:	Mr P Sidebottom
	Ms E McFarline

Appearances:

The claimant was not represented.  He conducted proceedings on his own behalf.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by DLA Piper UK LLP.

THE EVIDENCE

1.	The tribunal considered the claim form, the response together with two bundles of documents and other miscellaneous documents agreed between the parties and furnished to the tribunal.  Relative to the claimant's case the tribunal considered the sworn testimony of the claimant, of Mrs McCalden and of Mr Bell.  On behalf of the respondent the tribunal considered the sworn testimony of Ms McKnight, Ms Brown, Mr Hughes and Mrs McCoy.  The tribunal also considered the submissions of the parties.

THE ISSUES

2.	The issues for the tribunal to determine are as follows:-

	(i)	Was the claimant unfairly dismissed?  If so was the sanction imposed unfair or unreasonable and in particular was the claimant subjected to a more severe disciplinary sanction than colleagues in similar circumstances?

	(ii)	If it is found that he was unfairly dismissed did the claimant contribute to his own dismissal and if so to what extent?

	(iii)	If it is found that the claimant was unfairly dismissed a hearing will be convened to consider what compensation (if any) is due to him.

3.	In reliance on the claimant's contract of employment the tribunal is satisfied that the claimant was employed by HBOS Plc as a banking and savings advisor.  His employment commenced on 9 February 2004 and he was continuously employed until his dismissal on 20 April 2013.  He worked at the offices of the respondents at Cromac Place, Belfast.

4.	The claimant had a good performance record.  During the course of his employment he was nominated for and won various awards for service.  It is his evidence that he was highly regarded by junior and senior colleagues and the tribunal is satisfied that this was the case.

5.	Following the discovery of a paper copy of an email unrelated to the claimant but giving rise to a concern on the part of the respondent that the company email system was being used for an improper purpose a trace was placed upon an employee's email account.  This trace revealed emails sent by the claimant which in turn caused concern and a trace was placed upon his email account.  The trace on his account was authorized following a discussion between Ms McKnight, his indirect line manager at the time and Ms Stanbury of Human Resources based in England.

6.	It is the claimant's case that Ms McKnight was biased against him and exerted undue influence relative to his dismissal.  He relies upon an issue which arose at an earlier date relative to his car parking space which he asserts created ill will between himself and Ms McKnight.  He relies upon a telephone conversation he had with her relative to his bonus and subsequent to his suspension as evidence of ill will on her part.

7.	The tribunal finds no persuasive evidence of ill will on the part of Ms McKnight.  Her involvement in the disciplinary process relative to the claimant was limited to authorising a trace on his email account having discussed the matter with Human Resources and referring the issue on as a matter to be dealt with formally under the disciplinary procedure after viewing the contents of the trace.

8.	The trace placed on the claimant's email account uncovered a volume of offensive emails forwarded by the claimant to colleagues.  In particular a significantly large number of emails sent by the claimant between 1 October 2012 and 28 February 2013 were found to be grossly offensive.  Some contained sectarian and racist comments and explicit offensive imagery.  Imagery in some cases was constructed by the claimant.  Other emails contained derogatory comments about customers.

9.	An investigatory meeting was held on 20 March 2013.  Mr C Moore conducted the meeting as investigatory manager.  The claimant was placed on precautionary suspension with full pay following the meeting and pending an investigation.  It is the claimant's case that he never received written confirmation of his suspension, of the justification for it or of the terms or duration of the suspension.  The tribunal accepts this to be the case.  This regrettable omission on the part of the respondent is in breach of their disciplinary policy in so far as the policy requires that the period of suspension is confirmed in writing within 48 hours.  However it is common case that following the investigatory meeting the claimant was made aware by Mr Moore of his suspension on full pay pending an investigation and in these circumstances the tribunal is satisfied that the claimant was not prejudiced by the unexplained omission and was in possession of all relevant information.

10.	Disciplinary proceedings were commenced (against the claimant and others) and the claimant was invited by letter of 3 April to a disciplinary meeting chaired by Ms Brown.  Documents relative to the meeting were attached to the letter and the meeting was scheduled for 12 April 2013.  The claimant was unable to attend the meeting as arranged and it was re arranged for 16 April.  A second letter of invitation in the same terms as the original letter issued to the claimant.  The allegation of gross misconduct on the part of the claimant was outlined in general terms in the letter and more specifically set out in the following terms:-

		“You have sent emails to numerous people with differing offensive material in them, including some of a sectarian nature, talking about customers, some racist comments and some offensive pictures. 

		It is alleged that you fail to acknowledge that sending frequent e mails of an offensive, inappropriate nature using the bank's email facility contravene the group policy around unacceptable email usage.”

	The letter also contained a warning that in the event of the allegations being substantiated dismissal was a possible sanction.

11.	Following the Claimant's disciplinary meeting on 16 April 2013 Ms Brown formed the view that the charges of gross misconduct should be upheld and that dismissal was the most appropriate sanction.  She formed this view having considered the volume and content of emails sent by the claimant, his failure to acknowledge the seriousness of his behaviour, his attempts to justify the emails and his failure to show genuine remorse.  She made the decision to dismiss and she wrote to the claimant on 19 April informing him of his summary dismissal.

12.	The claimant appealed the decision to dismiss him and was unsuccessful in his appeal.  The appeal hearing took place on 27 June 2013 and was chaired by Mr Hughes an independent manager from outside the claimant's business and geographical location.  There was a delay in convening the appeal hearing causing it to be outside the time limits set out in the respondent's disciplinary policy.  This is regrettable in an organization the size of the respondent.  Nevertheless the tribunal accepts the reasons proffered by the respondent for the delay i.e. identifying a suitably independent manager to hear the appeal and the necessity to cancel the first appeal hearing because the date set clashed with the G8 summit which was predicted to bring chaos and congestion to travel in NI.  The tribunal accepts that the claimant was inconvenienced by the delay in convening the appeal hearing and that it was out with the time limits specified in the respondent's policy.  However there is no evidence that there was any prejudice caused to the claimant by the delay. 

13.	The claimant admits that his conduct in sending offensive emails was contrary to the respondent's Personal Integrity Policy and Unacceptable Practices Policy.  He accepts that his behaviour in sending them amounted to gross misconduct in accordance with the respondent's Disciplinary Policy and he agrees that dismissal was within the band of reasonable responses available to the respondent.

14.	It is the claimant's case that in dismissing him the respondent applied to him a sanction which was harsher than that applied to his colleagues in circumstances which he argues were similar to his own.  The respondent denies this to be the case and argues that the circumstances of none of those with whom the claimant seeks to compare himself were truly similar to those of the claimant.

15.	The colleagues with whom the claimant seeks to compare himself are not parties to these proceedings.  Disciplinary proceedings against them have concluded.  Their behaviour is subject to scrutiny now for comparison purposes only.  The respondent applies that their anonymity is protected.  In such circumstances the tribunal does not find that there is anything to be served by identifying them.  To protect their privacy they will be referred to by their first name initial and the tribunal is satisfied that the reasoning in the published decision will not be compromised as a consequence.

16.	It is the respondent's case that dismissal was the appropriate sanction in the claimant's case because the volume and content of the emails sent by him added to his failure to acknowledge the seriousness of the allegations against him distinguished him from colleagues who were disciplined but not dismissed.

17.	The claimant seeks to compare his treatment with that of D.  D was disciplined for improper management of the bonus system.  He was issued with a final written warning and was demoted.  The tribunal is satisfied that D is not an appropriate comparator because his circumstances were not truly similar to those of the claimant.  The offences with which he was charged did not relate to any abuse of the email system.

18.	M was investigated for misuse of the email system and suspicions that he was seeking to purchase illicit substances from colleagues in the workplace.  The allegation relative to the purchase of illicit substances in the workplace was not proven following an investigation.  M was disciplined for inappropriate use of the email system but it is the respondent's case that his email usage did not compare to the claimants in terms of volume or content.  He received a final written warning and his entitlement to a bonus during the period of the warning was suspended.  In so far as he was disciplined for use of the email system his circumstances appear similar to those of the claimant and it is appropriate that his treatment is compared to that of the claimant for present purposes.

19.	E was disciplined for inappropriate use of the email system.  E received a "Record of Conversation" which is the lowest level of sanction available to the respondent.  It is the respondent's case that E's email usage did not compare to that of the claimant in terms of content or volume.  E's circumstances appear similar to those of the claimant and it is appropriate that her treatment is compared to his for present purposes.

20.	S was also disciplined for inappropriate use of the email system.  She also received a "Record of Conversation".  It is the respondent's case that S's email usage did not compare to that of the claimant in terms of content or volume.  S's circumstances appear however similar to those of the claimant and it is appropriate that her treatment is compared to that of the claimant for present purposes.

21.	D2, M2 and E2 were issued with "records of conversation" relative to inappropriate use of the email system and are appropriate comparators for present purposes.  In addition to inappropriate email usage E2 was found to have sent an email containing customer information.  To this extent E2 is not an appropriate comparator but he is comparable relative to improper emails usage.

22.	A bundle of emails were produced to the tribunal.  It is the respondent's case that the bundle contains all offending emails in their possession relative to the claimant and his comparable colleagues.  The claimant denies this to be the case.  It is his evidence and that of his witnesses that there were other emails sourced in the trace which were not produced to the tribunal.

23.	The claimant and his witnesses may believe there to have been other emails available to the respondent.  However in the absence of any evidence to corroborate their beliefs the tribunal accepts the respondent's case that all relevant emails are reproduced in the bundle.  By way of example Mrs McCalden refers to emails sent by her which are not in the bundle.  She does not however give any indication of to whom those emails were addressed, when they were sent, and the circumstances in which they were sent or what they contained.  Mr Bell likewise refers to emails having been sent by him which were not produced but in the absence of corroborating detail referable to such emails the tribunal accepts the evidence of the respondent relative to volume.

24.	In terms of volume it is the evidence of the respondent corroborated by copy emails that the claimant sent 436 emails, D2 sent 9, M sent 21, M2 sent 46, E sent 130, E2 sent 8 and S sent 106.

25.	It is the respondent's case that the content of the emails sent by others did not compare to those sent by the claimant in terms of offensiveness.  This is a matter for the respondent and it is not for the tribunal to substitute it own view.  The tribunal is satisfied that the view adopted by the respondent having considered the respondent's evidence and the evidence of Mrs McCalden and Mr Bell (see paragraph 26) was reasonable.  Further it is the case that no emails other than those sent by the claimant contained imagery constructed to show offensive comment.

26.	Mrs McCalden in her evidence under cross examination accepted that she did not send any emails containing offensive imagery that she did not send any emails which were comparable in terms of offensiveness to emails sent by the claimant containing anti Semetic references and sectarian references referable to the flag protest.  Mr Bell under cross examination made similar concessions.

27.	Following the disciplinary meeting Ms Brown formed the view that the claimant failed to acknowledge the seriousness of the allegations against him and failed to demonstrate genuine remorse.  It is her evidence that during the meeting he sought to justify the emails as private communications between friends and argued that they were being interpreted by the respondent out of context.  She describes the claimant as being blase and this is corroborated by the fact that immediately following the meeting he asked Ms Brown to sign a match funding form relative to a marathon run.

28.	The claimant seeks to justify his relaxed approach to the meeting as being by reason of the fact that he had received assurances from colleagues that he had nothing to worry about.  However, the letter of 3 April inviting the claimant to a disciplinary meeting (see paragraph 10) clearly stated the possible seriousness of the allegations with dismissal being a possible sanction if they were substantiated.

29.	The tribunal, having considered the notes of that meeting, the evidence of Ms Brown and the evidence of the claimant are satisfied that in all the circumstances of the case the view formed by Ms Brown relative to the claimant's attitude was reasonable.

RELEVANT LAW

30.	The claimant enjoys the right not to be unfairly dismissed pursuant to article 126 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order).

31.	Article 130 of the 1996 Order applies and provides:-
		“(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

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

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

32.	Reasons falling within Article 130 (2) include a reason related to the conduct of the employee and the claimant was dismissed for gross misconduct.  This is not in contention.  He was dismissed for a fair reason.

33.	Article 130(4) of the 1996 Order goes on to provide:-

		“(4)	In any other case where the employer has filled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

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

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

34.	The claimant seeks to rely on the above provision to demonstrate that in the particular circumstances of his case he was unfairly dismissed because colleagues in similar circumstances were not dismissed.

35.	The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 outlines the task for the tribunal in a misconduct dismissal case.  The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer.  The claimant concedes that dismissal in his case was within the band of reasonable responses but amounted to inconsistent treatment.

36.	The Tribunal also considered British Home Stores Ltd v Burchell 1980 ICR 303.

37.	The Tribunal is satisfied that following proper investigation the respondent reasonably believed that the claimant was guilty of gross misconduct.  This is not in contention.  The Tribunal is further satisfied that proper disciplinary procedures were adhered to and in so far as there were departures from the respondent’s disciplinary policy that the claimant was not prejudiced by them.  In particular the claimant was not prejudiced by the failure on the part of the respondent to confirm his suspension in writing or the delay in arranging the appeal hearing (paragraphs 9 and 12 refer).  The Tribunal is not satisfied that anyone involved in the disciplinary process was prejudiced against the claimant or that the decision to dismiss him was a foregone conclusion.  There is no evidence other than the claimant’s uncorroborated testimony to suggest this to be the case.

38.	It is the thrust of the claimant’s case that his dismissal was unfair because he was treated inconsistently with colleagues who in similar circumstances were not dismissed.

39.	The Tribunal considered Harvey on Industrial Relations and Employment Law division D1 and in particular paragraphs 1035 to 1042.

40.	It is clear from the case law that to succeed in establishing unfair dismissal because of inconsistent treatment in similar situations the allegedly similar situations must truly be similar.

41.	The following guidance from Waterhouse J in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 assists:

		“We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity.  We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinize arguments based upon disparity with particular care.  It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument.  The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [s 130(4) of the 1996 Order.  The emphasis in that section is upon the particular circumstances of the individual employee's case.  It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered.  It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate.  One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realize how inappropriate it would be to import it into this particular legislation”.”

42.	Ultimately the question for the respondent is whether in the claimant's case dismissal is a reasonable response to the misconduct proved.  If the respondent has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that they should consider whether in all the circumstances, including the degree of misconduct proved, the disciplinary action is justified.  The question is whether the misconduct is truly similar.

43.	It is the respondent’s case that the claimant’s circumstances are distinguishable from the cases of those with whom he seeks to compare himself by reason of the volume of e mails sent by him, the content of those e mails to include the construction of offensive images and the fact that following the disciplinary process the respondent believed that the claimant did not appreciate or accept the seriousness of his behaviour and failed to show genuine remorse.

44.	An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned including his attitude to the misconduct in question.

Conclusions

45.	The claimant was not treated inconsistently with his colleagues for the following reasons:-

	(i)	The Tribunal is satisfied based upon the volume of e mails furnished to them by the respondent and  the absence of evidence from the claimant or his witnesses to corroborate their belief that further emails were sourced in the trace that the volume of emails sent by the claimant was significantly in excess of those sent by his colleagues.  He sent 436 emails.  His closest comparator sent 130.

	(ii)	The Tribunal is satisfied in reliance on the emails produced to them and the evidence of their witnesses that the respondent reasonably and genuinely believed that the emails sent by the claimant were more offensive in nature than those sent by his colleagues.

	(iii)	The Tribunal is satisfied based upon the evidence to include the minutes of the disciplinary hearing and the evidence of Ms Brown that the respondent reasonably and genuinely believed that the claimant failed to appreciate the seriousness of his behaviour and failed to show genuine remorse.  There is no evidence to suggest that this was the case relative to any of the colleagues with whom he seeks to compare himself.

46.	In all the above circumstances the Tribunal is satisfied that the claimant was not treated inconsistently with his colleagues and the claim is dismissed.

Chairman

Date and place of hearing:     17th, 18th 19th December 2013

Date decision recorded in register and issued to parties: