Forster v McKees Farm Shop Limited [2016] NIIT 00484

THE INDUSTRIAL TRIBUNALS

CASE REF: 484/16

CLAIMANT: Adam Thomas Forster

RESPONDENT: McKees Farm Shop Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and accordingly his claim before the tribunal is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr J Barbour

Mr P Sidebottom

Appearances:

The claimant was represented by Mr P Sullivan, Barrister-at-Law instructed by Stephen Perrott and Company Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law instructed by Millar McCall Wylie LLP Solicitors.

ISSUES

1. This was a claim of unfair dismissal brought by the claimant against the respondent in relation to his dismissal on 4 January 2016. The claimant alleged that he had been unfairly dismissed and his case, effectively, was first, that the respondent had failed to carry out an adequate investigation before dismissal and secondly that the respondent had acted unreasonably in dismissing the claimant for misleading the respondent regarding his late attendance at work on 31 December 2015. The respondent disputed the claim in full.

FACTS

2. We received witness statements and heard oral evidence from the claimant, from Mr and Mrs McKee, Directors of the respondent company and from Mrs McMaster, a book-keeper and an administrator of the respondent company. A considerable number of documents were also opened to us in the course of the hearing. On the basis of the evidence heard we make the following findings of relevant facts.

3. We should also note that we found Mr and Mrs McKee and Mrs McMaster to be clear and forthright witnesses. On one occasion where a matter had been omitted from the note of a meeting which she had made, Mrs McKee frankly admitted that it had been left out but agreed it had occurred. By contrast we noted that the claimant’s application to the tribunal was misleading in a number of respects and inconsistent with the statement which he presented to the tribunal. We found his evidence unconvincing and unsatisfactory in a number of respects. He was evasive in some of the answers which he gave to questions. Perhaps most concerning of all, when he started to apply for other jobs after his dismissal by the respondent, he had produced a CV which showed his work experience as including a role as supervisor for the respondent from “October 2014 - present” and continued to produce this CV to prospective employers for a number of months after his dismissal. This was at best careless and sloppy on his part and at worst, deliberately misleading to a prospective employer. When challenged about this, the claimant’s attitude was, “I had lost my job and had a mortgage to pay”.

4. The claimant started work for the respondent company as a “Saturday job” while still at school. He continued to work for the respondent on a part-time casual basis right through school and university. After completing a degree in business studies, he worked full-time for the respondent from in or about June 2013 until his dismissal early in 2016. In July 2014 the claimant was promoted to the role of supervisor and received a wage increase. This job carried increased responsibility including supervising staff, responsibility for handling cash and for locking up the premises at the end of the day from time to time.

5. The claimant reported to Mr Leslie McCluskey the General Manager and as part of his supervisory role, he agreed to start work early on some days at 7.30 am rather than 8.30 am depending of the needs of the respondent’s business. He was paid for the extra work he did and usually finished at 5.30 pm. If he worked later he was paid for additional hours worked. The respondent had a clocking in system where staff were required to clock in when they began and finished each shift.

6. The respondent’s business has grown considerably over approximately 10 years. From being a farm shop attached to their farm, it now includes the farm shop, gift shop, delicatessen and a restaurant which employs approximately 60 people on a full-time and part-time basis. Both Mr and Mrs McKee and the claimant agreed that there had been a good working relationship between them. Mr McKee’s evidence was that he had placed a lot of trust in the claimant and had viewed him as potential management material if he had decided to stay with the respondent.

7. Given the food-orientated nature of the respondent’s business, it was extremely busy coming up to Christmas and over the Christmas holiday period. Mr McKee indicated that he had been concerned that the claimant had attended work late on a number of occasions in the run-up to Christmas. The claimant’s timesheets were opened to us and it was clear that from 28 November 2015 until 30 December 2016, the claimant had been late on 15 occasions. His lateness ranged from five minutes to twenty minutes on a number of occasions, regardless of whether he was due to start at 7.30 am or 8.30 am.

8. On 31 December 2015 the claimant was due to start work at 7.30 am. His witness statement said that he arrived at work late and that he could not recall what caused him to be late. He also said that he was aware on arrival that he was approximately 10 to 15 minutes late. He forgot to clock in at the start of his shift which he described as an innocent mistake. In his claim form the claimant said that he was approximately 12 minutes late. Sometime later Mr McKee was conscious that some work remained undone in the shop and asked Mrs McMaster to check with the claimant what time he had arrived at work. Mrs McMaster went to speak to the claimant, who told her that he was in at 7.30 am. It was the claimant’s evidence that after he spoke to Mrs McMaster, he realised that he had made a mistake but because the shop was busy he did not have time to go to the office and put matters right. Within an hour he was called to the office to speak to Mr McKee who in the meantime had viewed the CCTV footage which showed that the claimant had actually entered the building at 7.47 am, some 17 minutes late for work. When Mr McKee spoke to the claimant and asked when he had arrived at work, the claimant first of all said that he was about 10 minutes late. Mr McKee then told the claimant that he had viewed the CCTV footage and that it showed he did not arrive until 7.47 am. It was Mr McKee’s evidence, which we accept, that he was upset that the claimant had lied to both him and Mrs McMaster about this. The claimant however gave no other explanation for his lateness.

9. Following this it was decided that Mrs McKee (who had taken notes of the initial discussion between Mr McKee and the claimant), would carry out the investigation and the disciplinary meeting, if any. She went and viewed the CCTV footage for herself and confirmed that the claimant had arrived at 7.47 am.

10. At the meeting on 31 December the claimant was also reminded of his position as supervisor and Mr McKee told him that his timekeeping was “very disappointing”. Mr McKee also told the claimant that, given he was in a position of trust and had been caught and admitted telling lies, he had no option but to suspend the claimant on full pay until further notice.

11. Following this Mrs McKee sent the claimant a copy of company handbook and then wrote to him by email inviting him to a disciplinary meeting on 5 January 2016. The claimant was provided with a copy of his contract of employment and allowed the right to be accompanied by a union representative (although he was not a member of a union). Notes of that disciplinary meeting were taken by Mrs McMaster. The disciplinary meeting centred not just on the claimant’s lateness (of which there had been a number of incidents), but also on his dishonesty in relation to his lateness at work on 31 December. In that discussion, Mrs McKee said that continual lateness was not acceptable and that “biggest disappointment” was that the claimant had told lies. To this the claimant replied that he too was disappointed in the way that he had been treated, having worked there for so long. Mr Catherwood, the union representative accompanying the claimant, queried why the claimant had not been approached previously in relation to his timekeeping. Following this meeting, Mrs McKee wrote to the claimant on 14 January setting out her finding that the claimant should be summarily dismissed due to gross misconduct namely his dishonesty in lying to Corinne McMaster and also to Colin McKee. She wrote;

“it is my finding that you deliberately lied to both Corinne McMaster and Colin and that this was not “slip of the tongue” as you suggest. Upon consideration I am of the view that the company can no longer continue to place trust in you as a supervisor as a result of your actions. Although I have considered your mitigating circumstances and in particular your length of service for the company, in view of the seriousness of your conduct and the lack of contrition you demonstrated at the disciplinary meeting I consider there is no alternative to dismissing you.”

She went on to say that as far as the timekeeping issues were concerned these were matters of minor misconduct which had been considered in terms of his overall conduct for mitigation purposes and had not formed the basis of her decision to dismiss him. The claimant was advised of his right to appeal which he had decided to exercise.

12. The appeal was heard by Colin McKee on 29 January 2016. The claimant was again represented at the appeal by Mr Catherwood who argued that procedurally the decision to dismiss had been unfair because the claimant should have been disciplined at an earlier stage and the case was made that the claimant should have been given a “second chance”. Having considered all the matters Mr McKee affirmed the decision to dismiss. He stated towards the end of his appeal outcome letter,

“I have thought about your service history when coming to this decision and I do not think it warrants a reduction in the sanction in these circumstances. If anything I am more upset that you have lied as you are someone that the company had invested time in, promoted and we had hopes for your future development. Similar to Linda I was disappointed that you were in no way remorseful during the meeting about the fact you lied. I considered your lack of remorse when determining whether or not there were any factors that mitigated your position.”

13. The claimant had sought alternative employment but was unsuccessful and started in business as a self-employed painter and decorator in May 2016. He lodged his claim before the industrial tribunal on 18 February 2016 and it was received in the Office of the Tribunals on 23 February 2016. His claim form also alleged that he had been dismissed for minor misconduct having had no previous warnings. His claim form alleged that he was not late for his contracted hours, although the claimant conceded in his witness statement and in cross examination that in fact he had agreed to vary his contractual hours to start at 7.30 am on some days and was paid extra for doing so.

THE RELEVANT LAW

Unfair Dismissal

14. The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended). In particular in this case we refer to Article 130 which provides as follows:-

“130 (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.

(2) A reason falls within this paragraph if it -

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do

(b) relates to the conduct of the employee

(ba) is the retirement of the employee;

(c) is that the employee was redundant or;

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part of on that of his employer) of a duty or restriction imposed by or under a statutory provision …

(3) (a) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

(4) In any other case where the employer has fulfilled 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 of the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

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

15. The leading authority on unfair dismissal in Northern Ireland is the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, as approved and restated in McCann v Antrim Borough Council [2013] NICA 7. Like the present case, Rogan related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

16. The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin v CityBus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery in Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111.

17. The nub of the test which must be applied in unfair dismissal cases was stated by Arnold J in British Home Stores as follows:-

“First of all there must be established by the employer the fact of that belief (ie the belief in the misconduct); that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he 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. It is the employer who manages to discharge the onus of demonstrating those two matters, we think, who must not be examined further. It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being “sure” as it is now said more normally in a criminal context, or, to use the old fashioned term such as to put the matter “beyond reasonable doubt”. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

18. The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it was noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged. While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact (see paragraph 17 of the judgment). This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner v East Midland Trains Ltd [2012] EWCA Civ 1470. At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test. He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer. He made two important observations about the test. The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse. The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case. He referred to his judgment in A v B [2003] IRLR 405 where he said,

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”.

It was also noted in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the “band of reasonable responses” test does not simply apply to whether the sanction of dismissal was permissible. It bears on all aspects of the dismissal process, including whether the pre-dismissal investigation was fair and appropriate.

19. We have also taken into account the fact that, as is recognised, disciplinary procedures should allow an opportunity for a claimant to improve his performance and the guidance given by the Labour Relations Agency in his Code of Practice on Statutory and Disciplinary and Dismissal Procedures. We have considered carefully the case law and are aware that in many cases dismissals for a “first offence” (as in this case) may be considered too harsh a penalty. However we note that the learned authors of Harvey on Industrial Relations and Employment Law indicate that dismissals for a first offence may be justified in three rather different circumstances:-

(1) Where the act of misconduct was so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;

(2) Where disciplinary rules had made it clear the particular conduct will lead to dismissal; and

(3) Where the employee has made it clear that he is not prepared to alter his attitude so the warning would not lead to any improvement. It is also noteworthy that in cases of theft or dishonesty a single act of misconduct may justify summary dismissal even though the events concerned were small but there was deliberate dishonesty (see McCorry v McKee t/a Heatwell Heating Systems [1983] IRLR 414).

[Harvey, Div D paras 1550 and following].

20. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal.”

21. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) [the GB equivalent of Article 130(4)(6) of the 1996 Order, set out at para 13 above] focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.”

The matter was again considered by the Court of Appeal in England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677, where Bean LJ observed:

““The band of reasonable responses” has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss “in accordance with equity and the substantial merits of the case”. This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer”. (para 61 of the judgment).

22. The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 8:-

“In deciding cases of unfair dismissal, tribunals will take account of an employer’s size and administrative resources when deciding if he/she acted reasonably. In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code. However, all organisations, regardless of size must follow the minimum statutory dismissal and disciplinary procedures where these are applicable.”

REASONS AND DECISION

23. We have considered carefully the evidence put before us and the applicable law. We have come to the conclusion that the decision to dismiss the claimant was one which was within the range of reasonable options open to a reasonable employer and that therefore the claimant’s dismissal was not unfair. Our reasons for this decision are as follows.

24. The claimant’s representative suggested that Mrs McKee had not done as much investigation of the matter as she should have done. We disagree. Given that the claimant eventually admitted his lateness having denied it twice, and Mrs McKee’s viewing of the CCTV footage confirmed the position, there was nothing more to be done, the matter was beyond dispute. We are satisfied that Mrs McKee had done as much investigation as was reasonable in the circumstances, in accordance with the Burchell test.

25. The other matter raised by the claimant’s representative was that dismissal was too harsh a penalty in all the circumstances of the case.

26. We can appreciate that the claimant considered the disciplinary action brought against him came out of the blue. We fully accept that in most cases it would be appropriate for an employer to act at an early stage when a disciplinary matter comes to light and to deal with it on a graduated basis. Indeed the disciplinary procedure included in the respondent company’s handbook refers to the objective of helping an individual to have the opportunity to improve his or her conduct. Ideally, Mr and Mrs McKee would have addressed the claimant’s punctuality issues sooner, rather than let it run on. That said, the claimant had been working for the respondent for almost 10 years, first on a part-time casual basis and then on a full-time basis. He was well aware of the need for punctuality and the need to clock in. He had also received promotion so that he was in a supervisory role. He was in a position of trust as he handled money and it was important that he set a good example to the staff under his supervision. He acknowledged all of that in cross-examination.

27. It is clear also that the issue of the claimant’s time-keeping was not a one-off matter: there had been some 15 incidents of the claimant being late prior to the incident in the month or so immediately before the incident on 31 December 2015. It is clear however from the tenor of the discussions which Mr and Mrs McKee had with the claimant that the central issue as far as they were concerned was that the claimant lied about his lateness and did not show any remorse or indicate any intention to improve his behaviour. It is clear from the correspondence at the time and from their evidence to the tribunal that this weighed heavily with them. The evidence given by both Mr and Mrs McKee was that they considered that a supervisor needed to set a good example to other staff and they needed to be able to rely on the claimant in his role as supervisor, given that he held a position of trust. Given that the claimant had misled them not once but twice as to how late he was for work, they took this seriously. They also emphasised that during the disciplinary procedure the claimant did not show any remorse nor does it appear that at any time he apologised or indicated that he would try to do better in future if he was given another opportunity.

28. We have considered this matter carefully. It may seem harsh to dismiss for a first offence, but as Harvey makes clear, where the act is one of gross misconduct, such as an act involving dishonesty, a single act of misconduct may be sufficient. Another issue to consider is whether or not the employer had any firm indication that the claimant was willing to alter his attitude. At the disciplinary meeting the claimant actually said that he was disappointed in the way he was being treated, rather than offering a heartfelt apology, which might have cut more ice with his employers. The idea that the claimant was indignant about his treatment by the employer in the middle of a disciplinary meeting suggests a degree of arrogance, when the claimant might better have shown some remorse. Unfortunately this attitude continued in the claimant’s manner and his approach to the tribunal hearing. He was vague and evasive and it was clear that his initial claim form to the tribunal was misleading to say the least.

29. In Bowater v North West London Hospitals NHS Trust (see above) Longmore LJ referred to the fact that it was the Employment Tribunals to whom Parliament had entrusted the responsibility of making what are “no doubt sometimes difficult or borderline decisions in relation to the fairness of dismissal.” It is important that we avoid substituting our decision for that of the disciplining employer. We do however have to make a judgment as to whether or not the employer acted reasonably, bearing in mind that there is a range of reasonable options open to an employer in any given situation. The test is not whether we would have dismissed the claimant in this situation: the test is whether or not it was reasonable for the respondent to do so. We consider that this is one of those borderline cases. We accept Mr McKee’s evidence (which was not disputed by the claimant) that he had various conversations with the claimant about his role and what was expected of him. The claimant also accepted that his employers were entitled to expect him (as a supervisor) to set a good example to other staff and show himself to be trustworthy. The claimant’s behaviour in lying severely damaged that trust. The fact however that a different employer might have given the claimant a second chance, does not of itself render the dismissal unfair. The claimant failed here to take the opportunity to try to retrieve the situation at the earliest opportunity, by apologising to his employers. On the contrary, he told his employers he was disappointed that he was being disciplined by the company.

30. Given the attitude which he displayed, his lack of remorse or of any assurances of improvement it seems to us that the respondent reached a reasonable view that the claimant was not prepared to alter his attitude and that a warning would not lead to any improvement. It is our view that the decision to dismiss in all the circumstances fell within the range of reasonable responses open to the employer and accordingly the claimant’s claim of unfair dismissal is dismissed.

Employment Judge:

Date and place of hearing: 8 August 2016, 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 >> Forster v McKees Farm Shop Limited [2016] NIIT 00484_16IT (30 August 2016) URL: http://www.bailii.org/nie/cases/NIIT/2016/00484_16IT.html Cite as: [2016] NIIT 00484_16IT, [2016] NIIT 484_16IT

Industrial Tribunals Northern Ireland Decisions