THE INDUSTRIAL TRIBUNALS

CASE REF:  1455/16

CLAIMANT:			Marc Van Rompaey 

RESPONDENT:		Concentrix Europe Ltd

DECISION
The unanimous decision of the tribunal is that the claim is dismissed.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mr M McKeown
				Ms E Gilmartin

Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr O Friel, Barrister-at-Law, instructed by the respondent’s In-house Solicitor. 

Background

1.	The respondent was a company operating a call centre in Belfast.  It provided services to various commercial clients.  Its arrangements with those commercial clients were subject to service level agreements which included specific requirements on responding to customer queries.

2.	The claimant had worked for the respondent for approximately eight years as a customer support worker in the Belfast call centre.  Part of his employment involved responding to requests for live e-mail chats from customers of the respondent’s clients who contacted the call centre.

3.	The claimant was a member of the Dutch speaking team in the call centre.  That team provided services to clients’ customers who were resident in Holland.  At an earlier stage he had been an employee representative in the in-house negotiating machinery and laterally had been a member of the GMB trade union.  He had been involved in recruitment activities on behalf of that trade union.

4.	The claimant was dismissed with effect from 9 March 2016 on the ground of misconduct; namely not responding to requests for live e-mail chats from customers of clients and letting those requests for chats pass to other employees and in some cases letting those requests be abandoned by the customers.

5.	The claimant lodged a claim of unfair dismissal on 8 June 2016 just before the statutory time limit of three months for lodging such a claim expired.  He alleged that the dismissal had been unfair.  He alleged inter alia that the reason for the dismissal had been redundancy or that the dismissal had in some way been linked to his trade union membership or activities.

Relevant law

6.	The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  

7.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“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 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 – 

						(b)	relates to the conduct of the employee, 

(4)	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 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.”

8.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLc (formerly Midland Bank)  v  Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR 111.

(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

	“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] themselves;

(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another; 

(5)	the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
			
(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon 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 three 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 upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more 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, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

9.	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.”

10.	In Fuller  v  London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the council’s case on appeal is that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

11.	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) 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”

“In A  v  B the EAT said this:- 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 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 enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

12.	It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal.  It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer.  In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal:  ie whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct.  The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence.  The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.   

13.	One of the relevant circumstances for determining fairness for the purpose of Article 130 may be consistency.  It is clear that there cannot be a tariff system in disciplinary procedures and that this issue must be approached carefully by employers and by tribunals.  That said, in Post Office  v  Fennell [1981] IRLR 221 the Court of Appeal (GB) said:-

“It seems to me that the expression ‘equity’ as there used [in the GB equivalent to Article 130] comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”

14.	As indicated above, caution needs to be taken in relation to arguments on inconsistency.  See Hadjioannou  v  Coral Casinos Ltd [1991] IRLR 352.  

	In Paul  v East Surrey District Health Authority [1995] IRLR 305, the Court of Appeal (GB) considered an argument on inconsistency.  In that case an employee had been dismissed after drinking on duty and becoming abusive.  He argued that others who had been drinking had not been treated in the same way.  They had been given a formal warning or a reprimand.  The Court stated:-

“I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of an Employment Appeal Tribunal in Hadjioannou  v  Coral Casinos Ltd [1991] IRLR 352, when at Paragraph 25, he said:-

‘We accept that analysis by counsel for the respondents of the potential relevance of the arguments based on disparity.  We should add, however, as counsel as urged upon us, that industrial tribunals would be wise to scrutinise 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 [Section 98(4) of the ERA].  The emphasise on 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 of rules of thumb, or codes, for dealing with industrial relations 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 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 realise how inappropriate it would be to import it into this particular legislation.’

I would endorse the guidance that ultimately the question for the employer is whether in a particular case dismissal is a reasonable response to the misconduct proved.  If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning.  If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider that whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.

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.  The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely.  Thus an employee who admits the conduct proved as unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely.  I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would have not regarded the actions of the employer in Mrs Rice’s case as disparate or have said that Mr Verling’s misconduct should have been treated just as seriously, if not more seriously, than Mr Paul’s.”

Procedure

15.	The claim lay against two respondents, ie Concentrix and Concentrix Europe Ltd.  It was apparent that the claimant had been employed at all relevant times by Concentrix Europe Ltd and the claim proceeded against that one respondent alone.  The title of the claim was amended accordingly.

16.	The claimant’s approach to this litigation has been puzzling and he did not appear to be interested in advancing his case or prepared to do so.

17.	The claim was case managed at two separate Case Management Discussions on 30 August 2016 and on 19 October 2016.  On each occasion the claimant clarified to the Employment Judge that his claim was one of unfair dismissal only under the Employment Rights (Northern Ireland) Order 1996.  He made it plain that he was not pursuing a claim of unlawful detriment on the ground of trade union activities or membership under the 1996 Order.  This position was despite his frequent references in his claim and indeed in his evidence to this tribunal to his earlier activities as an employment representative and to his more recent membership of the GMB trade union.

18.	The claimant also specified in his claim form that he sought an Order for                       Re-engagement by the respondent.  That position was not amended in the course of the Case Management Discussions or indeed until the later stages of his                    cross-examination.  The claimant did not pursue that particular remedy.  He sought compensation instead.  

19.	Despite the clear instructions given in the course of the Case Management Discussions that his witness statement must contain his complete evidence in relation to both liability and remedy, the claimant’s witness statement was silent in relation to remedy.  

20.	Furthermore, the Case Management Discussions had made it plain that an agreed bundle had to be submitted to the tribunal and that it would be used in the course of the hearing.  In the last Case Management Discussion the Employment Judge noted that the claimant was ‘now largely happy’ with the contents of the bundle.  The Employment Judge had provided that as a ‘special concession’ the claimant was allowed to produce an additional maximum of 30 pages subject to                       three specific conditions; firstly that those pages had already been furnished to the respondent; secondly, that the pages did not duplicate parts of the agreed bundle and; thirdly, that the pages should be provided by the claimant to the tribunal no later than 9.45 am on the first day of the hearing.  A written record of that Case Management Discussion was sent to the claimant and its contents could not have been clearer.  

21.	The respondent submitted an agreed bundle and the tribunal read the witness statements and to the extent necessary parts of the agreed bundle between 10.00 am and 11.00 am on the day of the hearing.  At 11.00 am, the clerk was advised that the claimant wished to submit his own bundle which appeared to be quite extensive.  The claimant argued that he was unaware that there was to be an agreed bundle and that he felt he had to provide his own bundle.  The tribunal does not accept that the claimant could legitimately have come to such a conclusion.  Nothing in the course of the Case Management Discussions or in the written record of those discussions could reasonably have been interpreted by the claimant as suggesting that the claimant had been either entitled or expected to submit a separate bundle at the last minute to the tribunal.  Furthermore, leaving aside the point that the documents that the claimant now wished to introduce exceeded the 30 page maximum limit, none of the three specific conditions, which had been brought orally and in writing to the claimant’s attention, had been met.  There had been no attempt to meet those conditions.     

22.	Following discussion the tribunal determined that it would move ahead with the agreed bundle.

23.	The claimant gave evidence on his own behalf and called no other witnesses.

24.	Four witnesses gave evidence on behalf of the respondent:-

			(i)	Mr Remco Van Straten, a team leader;

(ii)	Mr James Simpson, the team manager responsible, inter alia, for the live chat system;

(iii)	Mr Robert Reid, the supervisor who conducted the disciplinary hearing; and

(iv)	Ms Tracey Millar, the business manager who conducted the appeal hearing.

25.	Despite the Case Management Discussions and the record of those discussions making it plain to both parties that the witness statement procedure was to be used in this case and witness statements had to be exchanged in advance of this hearing, the claimant appeared to be totally unprepared for this hearing.  That is surprising since the claimant has already had experience of this tribunal on one occasion.  Furthermore, he had been an employee representative and had, with the permission of his employer, attended various trade union classes.  He had been an active trade union member.

26.	The claimant appeared to have had no questions or very few questions prepared by way of cross-examination.  He had no cross-examination at all to put to Mr Van Straten; he had only five questions in total for Mr Simpson (and that was after some prompting); he had only three questions for Mr Reid and no questions by way of cross-examination for Ms Millar.  His final submission lasted a few seconds even though the requirement for a final submission was explained to him in the morning of the hearing and he had over one hour during the lunch break to gather his thoughts in that regard.

27.	As indicated above, the claimant’s witness statement, despite the clear directions of the tribunal, did not deal with remedy and was comparatively brief.  The tribunal, after reading that statement, took the view it would be appropriate to ask the claimant to also swear or affirm to the contents of the claim form and also to adopt the contents of that form as part of his evidence-in-chief.

28.	The claim had been listed for two days, ie 3 and 4 November 2016.  As indicated above, after one hour’s reading time the substantive hearing commenced at 11.00 am and finished at 3.00 pm approximately on the first day.    

Relevant Findings of Fact

29.	The claimant was part of a Dutch speaking team providing services to customers of the respondent’s clients.  He worked in the call centre in Belfast.

30.	The claimant knew that an important part of his employment with the respondent involved conducting live chats by e-mail with customers of the clients of the respondent.  

31.	The claimant knew and accepted that he was expected to conduct two live e-mail chats simultaneously.  The procedures of the respondent company allowed him to do so since many responses were automatic and were initiated by pressing an icon on the screen.  The responses in many cases therefore did not require specific typing by the customer services assistant.

32.	The use of live e-mail chats commenced in July 2015.  The claimant had been trained in that work.  His training had been interrupted due to a period of illness.  Nevertheless he had resumed and had completed that training satisfactorily.  As part of that training, it had been made plain to the respondent’s employees, including to the claimant, that the live e-mail chats were an important part of their employment.  Any requests for live e-mail chats needed to be answered.  The importance of live e-mail chats and the importance of accepting requests for such chats was reinforced in a series of e-mails from the respondent to the employees including to the claimant.  

33.	There was no dispute that the claimant had been an active trade union member.  However, it was also clear that the respondent had facilitated his trade union activities including, in October 2015, approving a series of days off to allow the claimant to attend trade union training classes.

34.	The claimant was absent from work for two weeks from 12 October 2015 to 23 October 2015 with stress.  However, he returned to work and there were no further episodes of illness.

35.	The respondent became aware in January 2016 that the claimant had not responded to several requests for live e-mail chats.  In that month, 13 requests for chats were recorded as not answered by the claimant.  Some of those requests for chats had eventually been dealt with by other customer services assistants.  Some of those requests for chats had been abandoned by customers with no response. 

36.	Mr Simpson was the line manager who had been responsible for live e-mail chats.  He read a daily online report in January 2016 which indicated to him that the claimant had not been answering requests for chats which had appeared on his screen.

37.	The claimant was invited in an e-mail of 5 February 2016 to attend a fact-finding investigation.  That e-mail indicated:-

	“We are concerned about a number of chats that have been left as unanswered during January.  These chats were not accepted by yourself but timed out before either abandoning or going to another agent.”

	The statistics for the Dutch speaking team, allowing for the number of hours worked, indicated the claimant had been involved proportionately in the least number of live e-mail chats.  

38.	The invitation to attend the fact-finding meeting attached the document setting out the calls which were abandoned or passed to another agent.  It indicated that in the month of January ten calls had been abandoned and three passed to another agent.

39.	The fact-finding meeting was held on 10 February 2016.  The claimant was assisted by a colleague, Carlos Vondeling.  It was put to the claimant in the course of that meeting that 13 chats in January had been timed out and that 22 chats in November and December had similarly been timed out.

40.	The claimant put the blame on other colleagues indicating that they had dodged chats and taken excessive breaks.  As a result, he had decided to spread work more evenly.  It was clear that the claimant accepted that he had ignored calls on purpose deliberately and that he had allowed them to time out, ie when they had passed to another agent or had been abandoned.  The claimant stated that there had been an agreement between him, and two other colleagues, Michel and Carlos.  The purpose of that agreement was to spread workload evenly.

41.	The claimant alleged that he had missed some chats because he failed to notice the pop up appearing on the screen.  In the course of this fact-finding meeting he referred to instances where he would be in discussion with a colleague and would miss the call.  In the course of the tribunal hearing the claimant put forward a different version of events, ie that he had to stare at the keyboard while typing and would not look at the screen for prolonged periods thereby missing pop ups indicating an incoming chat.  

42.	The tribunal does not accept the claimant’s evidence in this regard.  It is highly improbable that anyone who had a difficulty in typing would be able to do so without frequently checking the screen to check what had actually been typed.  Furthermore if his habit of typing while staring at the keyboard was the genuine reason for missing incoming calls, that would have been the reason which he would have put forward in the course of the fact-finding investigation rather than at the tribunal.  Finally, the respondent had a system availed of by other agents where there was a sound alert when a chat arrived on screen.  The claimant did not suggest in the course of this investigation meeting that he did not know of that facility which had been notified to all staff.  In the course of the tribunal he indicated that for some reason he had been unaware of it.  That is highly unlikely given that the claimant worked in a call centre and was computer literate.  It is even more unlikely when the claimant did not state in the course of the fact-finding investigation that he had been unaware of that facility.

43.	More importantly the respondent in considering the claimant’s position had been entitled to question his explanations.  It seemed clear from the fact-finding investigation that the claimant had adopted a settled policy of ignoring incoming chats contrary to instructions and in the knowledge that in doing so he was not performing the duties for which he was being paid.

44.	Mr Simpson conducted a further investigation meeting with Michel Klein who had been named by the claimant as one of the other two individuals in the alleged agreement to share workload contrary to instructions.  Mr Klein stated that there had been no agreement.

45.	On 11 February 2016 Mr Simpson had a further investigation meeting with Carlos Vondeling.  Mr Vondeling stated that there was an agreement ‘if the balances are uneven’.  He indicated that that did not happen on a lot of occasions.  He stated “I was very surprised at the number of chats he (the claimant) has not taken”.

46.	Mr Simpson conducted other investigation meetings with other members of staff in the Dutch speaking team.  None had any knowledge of any such agreement.  

47.	On 23 February 2016, the claimant attended a further investigation meeting.  He did not allege during that further meeting that he had difficulty typing or that any such difficulty prevented him looking at the computer screen. 

48.	On 23 February 2016 the claimant was invited to a disciplinary meeting.  That                  e-mail stated:-

	“It was observed that during November, December and January there have been 35 chats in total that were randomly allocated to you from customers which you have not responded to.  As such this has resulted in a number of these chats being abandoned by the customer.  This has the potential to impact our service level agreement, with the customer and the relationship with our client due to this behaviour.”

49.	The claimant was advised that the conduct could be considered as gross misconduct and that a potential outcome of disciplinary proceedings could be dismissal.  He was requested to attend a disciplinary hearing on 25 February 2016 and was advised of the right to be accompanied.

50.	On 25 February 2016 the claimant was accompanied by a trade union representative at the disciplinary meeting.  The claimant again alleged the people in the Dutch speaking team took breaks when they should not and abused the system.  It seems clear that the percentage number of chats abandoned by the claimant was approximately 28% against a maximum target of 5%.  That level of disparity did not apply to other members of the staff.  At a further meeting on 9 March 2016 the claimant was advised of the respondent’s decision to dismiss him for gross misconduct as a result of the chat avoidance.  At that meeting the claimant raised the issue of not being able to type without looking at the keyboard.  He was advised of the right to appeal.

51.	Mr Reid noted that while the claimant stated that he could not ‘blind type’ and was not getting sound notifications for incoming chats, the situation remained the same and yet his performance had improved during February with no abandoned calls.  Mr Reid also noted that the claimant had not taken any responsibility for not taking chats and had sought to blame everyone else.  The claimant had been aware that he was required to take up to two chats and that no one else in the Dutch speaking team had been getting sound notifications for incoming chats.  Furthermore the claimant had not asked for any support during November, December or January when 35 chats had been dropped.  Mr Reid was concerned about the impact on clients and the service level agreements of the 35 chats being dropped between November and January which exceeded the 5% maximum target for abandoned calls.

52.	The claimant was advised in writing on 15 March 2016 of the dismissal decision and advised of the right of appeal.

53.	On 18 March 2016 the claimant appealed against the dismissal.  The contents of that written appeal are difficult to understand.  The claimant appeared to argue that abandoning chat requests did not amount to gross misconduct.  He argued that the investigatory process had been unfair and that there should have been no disciplinary charge.  He argued that this was a capability issue and it was up to the respondent to ensure that his skills and knowledge were kept up-to-date.  He finally argued that since he had been notified of the number of chats that had been ‘missed’ he did not make the mistake again.  

54.	The appeal was heard by Ms Miller on 25 March 2016.  He was advised of his right to be accompanied.  He did not avail of that right.

55.	The appeal was dismissed and the summary dismissal upheld.  The claimant failed to attend a meeting to be notified of the outcome and the outcome was sent by                  e-mail on 19 May 2016.  The claimant stated in evidence that he had a problem with his computer and that he could not read the e-mail.  Nevertheless, the claimant accepted that he had been aware of the outcome of the appeal.  The tribunal therefore concludes that he had been notified of the outcome of the appeal.   

Decision

56.	The claimant has done his best to obscure the issue in this case.  Nevertheless it is a simple and straightforward matter.  The claimant knew that his employment was as a customer support assistant and that an important part of that employment was accepting and dealing with live e-mail chats.  The claimant knew that the respondent regarded this part of his employment as important and that it would have impacted directly on the respondent and the respondent’s relationship with the clients.  The claimant also knew that failure to perform this part of his employment could well result in the loss of a contract and in the redundancy of not just himself but of his colleagues.  

57.	In November and December of 2015 and January 2016 the claimant did not accept 35 requests for live e-mail chats.  That was contrary to procedures and instructions of which he was well aware.  It went right to the core of his employment.  It was not a trivial matter.  The tribunal is satisfied that this misconduct was the reason for the dismissal.  There was no evidence that there had been any other reason for the dismissal.  The respondent had always facilitated the claimant’s trade union activities and membership. 

58.	The claimant throughout the investigation and disciplinary process sought to put the blame on others.  Principally he argued that others were not doing enough and that as a result he sought to even out the workload with an agreement which he stated he had reached with Michel and Carlos.  The respondent took the view that no such agreement existed.  The tribunal has concluded that the employer had been entitled to take that view.  Michel had clearly indicated that no such agreement existed and no one else in the team, apart from Carlos, had stated that they were aware of that agreement.  Mr Reid and Mr Simpson took the view that Carlos was simply trying to assist the claimant where he indicated, somewhat diffidently, that some type of agreement existed between him and the claimant but he did not know if any such agreement existed beyond that point.  Carlos had also been quite explicit in indicating that he was surprised at the number of chats that the claimant had abandoned.

59.	It is not the job of this tribunal to second guess the employer in a disciplinary process.  It is clear that these were serious matters with potentially significant repercussions for the respondent and for the claimant’s colleagues.  The tribunal cannot conclude that no reasonable employer could have dismissed in these circumstances.  It was clear at all stages that the claimant had deliberately not accepted incoming chats.  Some of these chats had been taken up by other agents but some chats had simply been abandoned.  At best, the customers had been delayed.  The respondent had been entitled to be extremely concerned at the claimant’s disregard for the clear procedures set out for him and his colleagues.  It was no answer for the claimant to simply say that other people were not pulling their weight when that assertion was not supported by the statistics and it was no answer for the claimant to say that he improved once his errors had been pointed out.  That latter point is very much a double edged sword because the respondent was entitled to consider, as Mr Reid did consider, that the claimant had shown his ability to accept all the randomly allocated live e-mail chats without a problem and that his decision not to do so in November, December and January had been a matter of deliberate choice on his part.

60.	The tribunal also concludes that the procedure applied by the respondent in this case complied with the statutory requirements set out in the Employment (Northern Ireland) Order 2003.  The charge had been clear and specific.  It had been communicated in writing.  There had been two disciplinary hearings at which the claimant had been accompanied.  An appeal had been offered and the appeal had been determined.  The decision of the appeal had been communicated to the claimant by e-mail.  The claimant stated that his software on his e-mail was not capable of dealing with the attachments.  However, the claimant did not ask for the attachments to be re-sent and confirmed that he had, in any event, been aware that the appeal had been dismissed.  The claimant was vague at the tribunal hearing as to what difficulty there had been with his software.  He seemed to suggest that he had had a difficulty with the computer itself.  In any event the tribunal is satisfied that all the steps of the statutory procedure had been followed.  

61.	The tribunal therefore concludes that the dismissal was for the reason of misconduct; that the dismissal had been procedurally fair and that the dismissal had been substantively fair.  The respondent had conducted a reasonable and a thorough investigation which led to a reasonable belief in guilt.  The decision to dismiss the claimant, objectively judged, had been a decision which a reasonable employer had been entitled to reach.  The claim is therefore dismissed.                  

Vice President

Date and place of hearing:	3 November 2016, Belfast		

Date decision recorded in register and issued to parties: