THE INDUSTRIAL TRIBUNALS

CASE REF:	  1673/14

CLAIMANT:			Rene Gerd Maalouf

RESPONDENT:		Teletech UK Ltd

DECISION 

The claimant’s claim to the tribunal is dismissed as his dismissal by the respondent was not unfair.

Constitution of Tribunal:

Employment Judge:	Employment Judge Murray

Members:	Mrs L Gilmartin
	Mr P Laughlin

Appearances:

The claimant represented himself.

The respondent was represented by Ms McCormick of Engineering Employers Federation.

THE CLAIM

1.	The claimant alleged that he was unfairly dismissed.  The respondent claimed that the dismissal was fair.

SOURCES OF EVIDENCE

2.	The tribunal heard evidence from the following witnesses for the respondent:

(1)	Mr McHugh who dealt with the disciplinary hearing and took the initial decision to dismiss for gross misconduct.

(2)	Mr Williamson who was responsible for health and safety and dealt with the incident which ultimately led to the claimant’s dismissal.

(3)	Mr McCartney who was Financial Director of the company and dealt with the appeal against dismissal.

3.	The claimant gave evidence on his own account.  

THE LAW

4.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

5.	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

6.	The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.  There was no breach of the SDP in this case.

FINDINGS OF FACT AND CONCLUSIONS

7.	The tribunal considered all the evidence both oral and documentary and found the following findings of fact on a balance of probabilities and reached the following conclusions having applied the law to the facts found.

8.	We found the claimant’s evidence at times contradictory and unreliable.  The claimant raised a new issue for the first time in his oral evidence namely that a colleague routinely ate Snickers bars at her desk near Mr D and she was not disciplined.  The claimant agreed that he was raising this point for the first time and had no explanation for not raising this point at any time previously in the internal procedures; in the claim form; in his correspondence with the respondent; in the response to the request for additional information; at the previous preliminary hearings at the tribunal in the course of these proceedings.  We rejected the claimant’s attempt to introduce this allegation at such a late stage and found that the claimant’s credibility was tainted generally because of this.

9.	The claimant was employed from 16 November 2009 until his employment was terminated by the respondent for gross misconduct in July 2014.  The precise date of termination was in dispute but this point is not material to the issues in the case.

10.	The incident which led to the claimant’s dismissal took place on 1 July 2014.  On that date it came to Mr Williamson’s attention that the claimant was observed eating a bag of nuts at his desk in the vicinity of a colleague Mr D who had a severe allergy to nuts.  

11.	Mr D’s allergy was such that he had a badge attached to his identification badge indicating the allergy that he had so that a first-aider would know what to do in the case of a reaction.  In addition Mr D had medication in the form of an Epipen in the refrigerator at work for use in case of a reaction.  Mr Williamson had also carried out a risk assessment on Mr D.

12.	The respondent’s premises comprise open plan offices.  The area where the claimant worked was a large open-plan office with desks situated in close proximity to each other.  At any one time 200-300 people would be working in that office.

13.	The respondent company had a very strict policy in relation to minimising the risks to workers with allergies of various kinds.  One of the reasons for the very strict policy was that in 2008 an employee of the respondent died of a heart attack at work.  That employee had a severe latex allergy and, whilst the company could not be sure that an allergic reaction played a part in the colleague’s death, it brought home to all the staff the potential risks and dangers faced by those with severe allergies.  

14.	The policy of the respondent in relation to nuts in particular was that the consumption or possession of nuts was prohibited in designated parts of the open- plan office.  Staff were allowed to have foods containing nuts in the canteen and specified areas on certain occasions but it was common case that nuts were prohibited at the claimant’s desk and in that vicinity.  

15.	The claimant admitted throughout and confirmed at hearing the following relevant facts in relation to this policy:

(1)	He knew specifically in November 2013 that his colleague Mr D, who sat close to him, had a severe nut allergy;  

(2)	That Mr D’s severe nut allergy meant that it could cause severe and serious problems for him if he were exposed to nuts;

(3)	That the company policy was that employees should not eat nuts at their desk or “on the floor”.

16.	The claimant confirmed that he was aware that posters were situated at various points on the shop floor drawing employees’ attention to the prohibited food including nuts.

17.	Whilst the claimant was vague and evasive in relation to other methods by which the respondent brought the policy to the employee’s attention, we find as a fact that the company took the following steps to make the policy known to their employees:

(1)	Regular emails were sent to staff in relation to the policy;

(2)	Posters and messages were periodically displayed on plasma screens and screensavers outlining the policy and the foods that were prohibited;

(3)	At team briefings the policy was reinforced on a regular basis;

(4)	At induction employees were specifically told about the policy.

18.	We also accept the evidence from the documentation and from the respondent’s witnesses that the claimant was spoken to informally about contravention of the policy on more than one occasion.

19.	On 1 July 2014 when it was apparent that the claimant was eating nuts, Mr D had to be taken from the area and kept in Mr Williamson’s office pending a deep clean of the area where the nuts had been.  This indicates the serious concern that there was in relation to the risk posed to Mr D by potential exposure to traces of nuts because of the actions of the claimant.

20.	We do not accept the claimant’s evidence that he simply had a few nuts in his hand as he left the canteen.  Whilst the claimant initially disputed that there was a bag of nuts on his desk he then admitted that he had such a bag but disputed the size of it.

21.	An investigation into the incident was carried out.  A letter of 1 July 2014 was sent to the claimant inviting him to a disciplinary meeting.  The letter of 1 July 2014 put the following charges to the claimant:

	“The purpose of this meeting is to discuss your alleged gross misconduct in that you potentially breached the TeleTech Corrective Action Policy by way of serious infringement of health and safety rules, insubordination and serious negligence which causes or might cause unacceptable loss, damage or injury by consuming nuts in the vicinity of an colleague with a severe nut allergy.”

22.	The process and documentation complied with the statutory dismissal procedure.  The claimant did not allege any other defect in the procedure and we find that the procedure adopted was fair and well within the band of reasonable responses for a reasonable employer in the circumstances.

23.	At all stages the respondent made the claimant aware that the issue being dealt with was potentially gross misconduct. 

24.	Under the respondent’s policy examples of gross misconduct are listed and the three categories engaged in this case were as follows:

	“17.	Failure to follow safety procedures, and/or rules, thereby putting at risk the safety of the employee or others, including contractors.

	...

	20.	Serious insubordination.

	21.	Serious negligence which causes or might cause unacceptable loss, damage or injury.”

25.	At all stages the claimant admitted that he consumed nuts in the vicinity of Mr D and in the prohibited area.  His defence was that he simply forgot and that the penalty of dismissal was too harsh.  

26.	The claimant had a live Final Written Warning on his record having been given that warning in November 2013.  It was the claimant’s case that it was only during that process in November 2013 that he was specifically made aware that Mr D had a severe nut allergy.  We do not accept the claimant’s case on this and we find as a fact that he knew about the policy and how seriously the respondent applied it at all stages in his employment.

27.	Mr McHugh found the claimant guilty of the charges against him given the admissions made.  In deciding which penalty to adopt, it weighed very heavily with Mr McHugh that the claimant did not seem to appreciate the seriousness of his actions nor did he appreciate the potentially serious consequences for Mr D.  Mr McHugh therefore had a serious and reasonable concern that the claimant might contravene the policy again and, given the serious risk to the health and safety of a colleague, he decided that summary dismissal for gross misconduct was warranted.  We find that Mr McHugh acted fairly at all stages and his decision was within the band of reasonable responses for a reasonable employer in the circumstances.

28.	Following the disciplinary meeting which took place on 7 July 2014, the claimant received an outcome letter of 10 July 2014 advising him of his dismissal for gross misconduct.

29.	The claimant appealed and Mr McCartney dealt with the appeal at a hearing on 21 July 2014.  It was clear from his evidence and from the documentation that he considered the matter carefully and undertook further investigations to deal with points raised by the claimant.  He upheld the decision to dismiss and we find that his decision was within the band of reasonable responses for a reasonable employer and his decision to uphold the dismissal was therefore fair.

30.	At hearing before the tribunal the claimant made it clear in his evidence that he could not see how the eating of nuts was a problem.  He appeared to indicate that it was the responsibility of Mr D to ensure his own health and safety and if that meant that he could not work in a workplace where he might be exposed to nuts then he should take responsibility for his own health and safety.  This attitude displayed by the claimant, echoed the account given by Mr McHugh of the claimant’s attitude during the disciplinary process.  We can therefore understand the respondent’s concern that the claimant did not seem to appreciate what he had done wrong.  We therefore find that the employer’s actions at all times were reasonable.

31.	The respondent was motivated at all times by concern for the health and safety of its workers.  We do not accept the claimant’s case that the prohibition on certain food items was routinely ignored by other employees.  We accept the evidence of the respondent’s witnesses that, if the rule on eating food outside the designated areas was infringed, this was immediately dealt with.  We also accept that any such infringements related to eating food generally rather than eating prohibited items specifically.  We accept the respondent’s evidence that they took a very strict line in relation to the prohibited items which were the items likely to cause a risk to those suffering from allergies.  Such a strict policy was clearly understandable in the context of a large open-plan office with a large number of employees working in close proximity to each other.

32.	The claimant’s claim of unfair dismissal is therefore rejected in its entirety.  

Employment Judge:       

Date and place of hearing:  4 March 2014, Belfast.		

Date decision recorded in register and issued to parties: