THE INDUSTRIAL TRIBUNALS

CASE REF:	  1278/14

CLAIMANT:			Darren Booth

RESPONDENT:		Mercury Security Management Ltd

DECISION 

The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent and the tribunal orders the respondent to pay the claimant the sum of £1,310.80, subject to recoupment as set out in the conclusions.

Constitution of Tribunal:

Employment Judge:	Employment Judge Crothers

Members:	Mr M Grant
	Mrs C Stewart

Appearances:

The claimant was represented by Mr Neeson, Barrister-at-Law instructed by O’Hare and Co. Solicitors.

The respondent was represented by Mrs L Sheridan of Peninsula Business Services Ltd.

THE CLAIM

1.	The claimant claimed that he had been automatically unfairly dismissed by virtue of Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). In the alternative he contended that he was unfairly dismissed in accordance with the provisions of Article 126-130 of the Order.  The respondent denied the claimant’s allegations in their entirety.

	The claimant’s claim of unlawful deduction of wages and notice pay was resolved between the parties and that part of the claim was withdrawn from before the tribunal, and therefore does not constitute part of this decision.  The claimant also withdrew his disability discrimination claim on the first day of the hearing.

THE ISSUE

2.	The issue before the tribunal was whether the claimant was unfairly dismissed by the respondent.

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and, on behalf of the respondent, from Ronnie Heaney, Contracts Manager and Helen Wells, Administrator.  The tribunal also considered relevant correspondence placed before it by both parties in the course of evidence.  This included the Employee Handbook and the claimant’s contract of employment.

FINDINGS OF FACT

4.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i)	The claimant was employed by the respondent as a Security Guard from 30 May 2011 until the effective date of termination of his employment on 27 May 2014.  The parties agreed, subject to liability, that any basic award would amount to £1,060.80.  The parties also agreed a comprehensive Schedule of Loss insofar as possible, subject to liability.

(ii)	The letter of dismissal dated 27 May 2014, to the claimant reads as follows:-

	“Further to our letter of 9th April 2014 and our meetings of 11th and 18th April 2014 I am writing to confirm our discussions and my decision.

	The matter of concern was:

•	That you permitted mail with Claire McIntyre’s name on it but addressed to NYSE to leave the building know that Claire McIntyre was an ex employee of NYSE and unknown to you the mail contained very sensitive information this was a serious breach of NYSE security procedures.

	As a result of the above concerns, our client NYSE had written to us informing us that they no longer wish for you to continue working in your current capacity, on their premises.  We conducted a full investigation into the issues raised and have sought to persuade Mr Burke Director of European Security that you should be allowed to work on their premises however, they have insisted that you are removed.

	In our second meeting we also discussed alternative employment and I informed you that we had other roles which were offered to you on a number of occasions and to which we have had no response.  This situation has come about by what is known as thirty party pressure and unfortunately, as you have not confirmed your intentions with reference to the other roles and that there is no other work available for you, I regret to inform you that your contract of employment is being terminated.  Your removal from NYSE and your refusal to accept our offer of alternative work is some other substantial reason which justifies your dismissal.

This will take effect immediately and you are entitled to 1 weeks’ notice which will be paid to you in lieu together with any outstanding holiday pay and your P45.

You have the right of appeal against my decision and should you wish to do so you should write to Mr Liam Cullen within 5 days giving the full reasons as to why you believe your dismissal was either too severe or inappropriate.

	Yours sincerely

	Ronnie Heaney
	Regional Operations Manager”

	(iii)	The claimant stated in his evidence that he had sought advice from the Law Society after receipt of his dismissal letter.  He decided not to appeal the decision, as, according to his evidence, it would make no difference.

	(iv)	The claimant had received a written warning for misconduct which he did appeal.  However this does not form part of his case before the tribunal.  The tribunal is satisfied that the claimant’s removal from the New York Stock Exchange site (“NYSE”), and his refusal to accept an offer of alternative work in River House constituted the reasons for his dismissal.  On the balance of probabilities, the tribunal accepts that the principal reason for his dismissal was his refusal to accept the respondent’s offer of alternative work pursuant to his removal from the site.  

	(v)	The tribunal is also satisfied, on the evidence, that the respondent did make efforts to retain the claimant’s position on the NYSE site, which were unsuccessful.  As a result the respondent sought alternative employment for him.  It appears that the only suitable post was at River House.  In his cross-examination before the tribunal, the claimant mentioned that he could have been more flexible in his working hours.  However, this was not reflected in his claim form, his witness statement, or in his evidence in chief before the tribunal.  There is also no evidence that he had ever made the respondent aware of this prior to his dismissal.  Furthermore, the claimant claimed that had he realised that the refusal to take up the offer at River House would have led to his dismissal, he would have accepted the offer.  The tribunal is not convinced by the claimant’s evidence in this aspect of his case.  Such matters could have been considered as possible grounds for appeal against his dismissal.  Instead, after receiving advice, the claimant decided not to appeal.  It is also clear that when he did receive advice, he was in possession of documentation including his letter of dismissal.

	(vi)	The respondent’s correspondence to the claimant dated 9 April 2014 relating to his removal from the NYSE site and the allegation of misconduct, includes the following:-

		“At the end of the disciplinary hearing, I will adjourn it to consider my response.  No decision will be made at that stage.  Pending that decision, however, we will immediately hold a separate meeting with you to discuss the client’s request to remove you from their site.  This will ensure I can establish all of the facts and give you the opportunity to put forward your own explanation.  I will then, if appropriate, be able to make formal representations on your behalf to the client with the aim of having you reinstated.  I feel that I should point out to you that we have no alternative but to respect the client wishes.  It is part of our contractual arrangement with them that they have the right to request exclusion of any of our personnel from their premises.

		After I have spoken to the claimant I will confirm the decision in writing.  I must warn you that if we are unable to persuade the client to allow you to continue work on their premises and we have no alternative employment for which you can be considered, then even if we do not find that your actions amount to gross misconduct, your contract may be terminated.  The technical reason for this dismissal would be for ‘some other substantial reason’ (SOSR) – in this case, third party pressure.  We will seek to avoid this if possible”.

	(vii)	The Statutory Dismissal and Disciplinary Procedures (“DDP”) are set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 as follows:-

		“Step 1: A statement of grounds for action and invitation to meeting –

1.- (1)	The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2  Meeting

(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2)	The meeting must not take place unless –

	(a)	the employer has informed the employee what the basis was for including in the statement in Paragraph 1(1) the ground or grounds given in it; and

	(b)	the employee has had a reasonable opportunity to consider his response to that information.

(3)	The employee must take all reasonable steps to attend the meeting.

(4)	After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it”.

	(viii)	The claimant’s case was that notwithstanding the correspondence of 9 April 2014, the respondent had failed to comply with Step 1 of the DDP in that it had failed to set out in writing the circumstances surrounding some other substantial reason (“SOSR”), which would lead the respondent to contemplate dismissal.  The claimant claimed that an SOSR meeting had taken place in two parts, on 11 and 18 April 2014 respectively.  The notes of these meetings do not appear to refer to either termination of employment or dismissal.  On the other hand, the respondent contended that the wording in the 9 April 2014 correspondence, referred to previously, meant that it had complied with Step 1 of the DDP.

	(ix)	The tribunal, having carefully considered the evidence including the minutes of the meetings on 11 and 18 April 2014, is not satisfied that the respondent has complied with Step 1 of the DDP.  It is satisfied that the correspondence of 9 April 2014 does not constitute compliance with Step 1.  That correspondence refers to a number of possibilities which may or may not occur and cannot in the tribunal’s view, be construed as being equivalent to the specific correspondence required by Step 1 of the DDP.

	(x)	Notwithstanding its non-compliance with Step 1, the tribunal is unconvinced by the claimant’s further evidence that he felt his contract would continue even if he refused the offer of alternative employment.  This conclusion is fortified by his failure to appeal the decision to dismiss him, pursuant to advice.  A failure to appeal, in itself, is a breach of the statutory DDP.  The tribunal is however satisfied that had the respondent complied with the requirements of Step 1, the outcome would have been the same and a 100% deduction must therefore be made from any compensatory award to reflect the percentage chance of dismissal under Polkey v AE Dayton Services Ltd [1988] ICR 142.

	(xi)	A breach of the DDP can also lead to an increase in the basic award to four weeks’ pay.  The calculation of any basic award is however, already based on four weeks’ pay.

SUBMISSIONS

5.	The tribunal considered the helpful written and oral submissions placed before it.  Part of the written submissions relating to the relevant legislative provisions and the authorities highlighted by the respondent are appended to this decision.  The tribunal received further submissions from both parties which were considered insofar as relevant together with copies of various authorities.

THE LAW

6.	The tribunal considered the relevant provisions in the Order relating to dismissal and automatically unfair dismissal under Article 130A.  It also considered the requirements in relation to the statutory procedures laid out in the Employment (Northern Ireland) Order 2003.  The relevant legislative provisions are adequately set out in part of Mr Neeson’s written submissions appended to this decision, and are further referred to in the conclusions. 

CONCLUSIONS

7.	The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact concludes as follows:-

	(i)	The provisions contained in Article 130A of the Order apply.  The tribunal is satisfied, by virtue of Article 17 of the Employment (Northern Ireland) Order 2003, that the claim is one to which the statutory procedures apply. The DDP was not completed before the claim was presented to the tribunal and the non-completion of the statutory DDP was wholly or mainly attributable to failure by the respondent to comply with Step 1 of that procedure.  Failure to comply with the minimum statutory dismissal procedures makes a dismissal automatically unfair.  

	(ii)	Although not essential it is suggested that a tribunal, having made a finding of automatic unfair dismissal, should record findings in the alternative on “ordinary” unfair dismissal.

	(iii)	Where a dismissal is in breach of the statutory dismissal procedures and therefore automatically unfair under Article 130A(1) of the Order Polkey applies in full (ie, a deduction of 0%-100% can be made to reflect the percentage chance of dismissal).  As recorded in paragraph 4(x) of the findings of fact, the tribunal concludes that a 100% deduction must be made from any compensation award as the outcome would have been the same had the respondent complied with Step 1 of the DDP under Article 130A.

	(iv)	A consideration of a breach of procedures other than statutory procedures can only be considered if the statutory DDP is complied with (see generally Software 2000 Ltd v Andrews [2007] IRLR 568).

	(v)	Apart therefore, from the finding of an automatic unfair dismissal under Article 130A of the Order the tribunal in this case is satisfied, in any event, that the dismissal would not be unfair under the relevant provisions of the 1996 Order relating to “ordinary” dismissal in light of the tribunal’s findings of fact.

	(vi)	The tribunal therefore awards the claimant the sum of £1,310.80 made up as follows:-

		Basic award		£265.20 x 4 		=	£1,060.80

		Amount for loss of statutory rights		=	£   250.00

			Total amount to include basic award		£1,310.80

	(vii)	The Employment Protection (Recoupment of JobSeekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.  The award is therefore subject to recoupment of JobSeeker’s Allowance from 5 June 2014 to 30 November 2014 totalling £1,821.03.

	(viii)	The attached Recoupment Notice forms part of the decision of the tribunal.

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

Employment Judge:       

Date and place of hearing:	18-21 May 2015, Belfast.	

Date decision recorded in register and issued to parties: