THE INDUSTRIAL TRIBUNALS

CASE REF:   862/17

CLAIMANT:			Paula McKeown

RESPONDENT:		Inspire Disability Services Ltd

DECISION
The unanimous decision of the tribunal is that the claimant had been unfairly dismissed by the respondent.  Compensation of £3,483.50 calculated as set out in this decision is awarded to the claimant.

Constitution of Tribunal:
Vice President:	Mr N Kelly
Members:		Mrs V Walker
			Mr A Carlin

Appearances:
The claimant was represented by Mr C O’Neill, Barrister-at-Law, instructed by Jarlath Fields, Solicitors.
The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Background

1.	The respondent is a limited company which provides care and support, including residential services, to vulnerable adults.

2.	The claimant was employed as a support worker by the respondent, latterly in a residential home in Armagh, from 23 March 2009.  

3.	Following an investigation and a disciplinary procedure, the claimant was summarily dismissed on 10 November 2016 for gross misconduct.  Her internal appeal against that dismissal was unsuccessful.

4.	The claimant alleged that she had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996.

Procedure

5.	This case was case-managed on 5 May 2017.  

6.	In that Case Management Discussion, directions were given for the interlocutory process and for the use of the witness statement procedure.  

7.	Witness statements were exchanged in advance of the hearing.  Those witness statements took the place of oral evidence-in-chief.  Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statements as their evidence, and moved immediately into cross-examination and then brief                          re-examination.  

8.	The tribunal read the witness statements, and to the extent necessary, parts of the agreed bundle before the hearing.

9.	The claimant gave evidence on his own behalf.  Three witnesses gave evidence on behalf of the respondent.  They were:-

(a)	Mr Mervyn Garrett, who had conducted the disciplinary investigation with Ms Gemma MacGregor of the Human Resources Department.  

(b)	Ms Margaret Cameron, who had conducted the disciplinary hearing together with a Mr Colin Smith, and who had summarily dismissed the claimant for gross misconduct.

(c)	Mr Billy Murphy, who heard the claimant’s appeal against that dismissal with a Ms Linda Hutchinson, and who had dismissed that appeal.

Findings of fact

10.	At all relevant times, the claimant was employed as a support worker in a residential home owned by the respondent.  Initially, there were three vulnerable adults resident in the home.  

11.	The claimant worked alone in the home from 9.00 pm to 8.00 am, providing support for the residents.  There was no panic alarm or emergency alarm system.  If an employee experienced difficulties, that employee was supposed to telephone a line manager or others, including the police, for support.  

12.	In December 2015, the claimant and other staff were notified that an additional resident would soon live in the home.  The new resident (‘A’) had particular difficulties and attracted a higher level of funding to the respondent.  Additional staff were not employed by the respondent as a result.  

13.	‘A’ had been moved from another residential setting.  The staff at the residential home, including the claimant, were shown details of ‘A’s’ risk assessment which had been compiled by the SHSCT.  That risk assessment referred to an adult male with a severe learning disability and a difficult family background, including allegations of inappropriate sexual behaviour.  He had undergone therapy for anger issues, inappropriate sexual behaviour, and sexually violent fantasises.  There had been complaints from other residents in his previous residential home in 2015 about his behaviour, including one allegation that he had exposed himself to another resident.  

14.	The claimant’s line manager was Mr Paul Kelly.  Mr Kelly was supposed to have conducted formal supervision meetings with the claimant every four to eight weeks.  Under her previous line managers, those meetings had occurred on regular occasions.  The last supervision meeting between Mr Kelly and the claimant had occurred in November 2015 before ‘A’ arrived in the home.  No supervision meeting had taken place after the arrival of ‘A’, and it seems particularly odd that this was so, given that ‘A’ presented particular challenges to the staff employed in the home and indeed presented potential dangers to the other residents.  

15.	According to the evidence given by the witnesses for the respondent, there had been various team briefings for the staff in the home.  However, the tribunal was not taken to any minutes of such meetings and was not taken to any records of such meetings.  It seems, in any event, clear that no additional measures had been put in place by the respondent to assist the staff in the home, including the claimant, in dealing with ‘A’.

16.	The claimant gave evidence that on three previous occasions, she had tried to telephone for emergency assistance.  On those three occasions, her managers did not answer her telephone calls and there had been significant delays in obtaining the necessary assistance.  This evidence was not rebutted or even challenged by the respondent.  It is accepted by the tribunal.  

17.	The claimant gave evidence that she had made five entries in the daily record maintained in the home of incidents of bullying by ‘A’.  This particular evidence was not rebutted or challenged by the respondent and is accepted by the tribunal.  However, the claimant did not specifically raise her concerns about working alone with ‘A’ until she raised the matter with a manager at the end of March 2016.

18.	Having observed the witnesses, it is clear to the tribunal that the claimant became genuinely concerned about working alone in the home during the night when ‘A’ was present.  She went on sick leave on 31 March 2016.  

19.	On one occasion, ‘A’ told the claimant that he had plied a 12 year old girl with alcohol and that he had sex with her.  The claimant reported this conversation to management.  ‘A’ accepted that he had said all of this to the claimant, but he claimed to management that he had made the story up to ‘wind up’ the claimant.

20.	While on sick leave on 2 April 2016, the claimant attended the home and spoke to her line manager, Mr Kelly, and to another team leader, Mr John Quigg.  The claimant was upset during this conversation and was frightened by having to work alone at night with ‘A’.  She pointed out to Mr Kelly and Mr Quigg that there was no panic alarm or emergency call system in the home.  She stated that she was concerned about the possibility of being attacked by ‘A’.  She stated that she was also concerned about not being able to call for help.  She gave evidence that she felt that she was being ignored by Mr Kelly and Mr Quigg and that her concerns about her own safety and the safety of others was not being taken seriously.  Having observed the witnesses, the tribunal concludes that this had been a genuine concern on the part of the claimant.

21.	In the course of this conversation, when she was extremely upset, the claimant made reference to a ‘rolling pin’.  

	In the course of the internal investigation process and disciplinary process, and before this tribunal, the claimant has consistently stated that she had asked a rhetorical question in the course of a heated conversation.  She has stated that the rhetorical question was on the following lines:-

		“How long would it take me to run to the kitchen to get a rolling pin?”; or

		“Should I get a rolling pin?”

She is unclear exactly what she said about the rolling pin but she has always maintained that whatever she said had been in the form of a rhetorical question.  Nevertheless she acknowledges that she should not have said such a thing.  In particular, she has maintained consistently that she never said that ‘she sat with a rolling pin’.  

22.	Mr Quigg maintained that she had said that she sat with a rolling pin beside her ‘on the radiator’.  Mr Kelly, who had observed the same conversation, initially said that the claimant had stated she ‘kept a rolling pin beside her’ and then later said that she had ‘said something to that effect’.

23.	Mr Garrett was asked by the respondent to conduct an investigation into the conversation, which had occurred on 2 April 2016.

24.	He telephoned the claimant on 29 April 2016, almost four weeks after the conversation, to tell the claimant that she was suspended from duty pending the outcome of the investigation into that conversation.  It seems clear to the tribunal that this step had been provoked by the claimant’s expressed intention to return from sick leave to work in the near future.  

25.	Mr Garrett stated in evidence that the telephone conversation on 29 April 2016 had included a reference to a second potential disciplinary charge alleging a breach of patient confidentiality.  It is however clear, and it was accepted by Mr Garret on cross-examination, that no such reference had been made in the telephone conversation on 29 April 2016.  

26.	The second potential disciplinary charge did not proceed.  The basis of that potential disciplinary charge was that a relative of a resident at the home had told management of the respondent that he had been given confidential information about ‘A’ and, in particular, information about the potential risk posed by ‘A’ to other residents.  It emerged on further checks that the relative in question had stated that he had been given this information by a male and not by a female.  It seems odd to the tribunal that this obvious point had not been checked by the respondent before a decision had been made to launch a formal disciplinary investigation against the claimant in respect of this matter.

27.	Mr Garrett interviewed the claimant and eight members of staff, including Mr Kelly and Mr Quigg.  However, he did not check whether there had ever been a rolling pin in the house at any stage.  He had simply assumed that there had been a rolling pin in the house but he had not made this obvious check.  Obviously, he did not then check whether any rolling pin which might have been in the house at the relevant times had been a heavy wooden rolling pin which might have been used as a weapon or whether it had simply been a lightweight plastic rolling pin.  

	He accepted, in cross-examination, that there had been no evidence from any member of staff that the claimant had ever been seen with a rolling pin, either beside her, or in her hands.  Furthermore, Mr Garrett did not speak to the patients.  In particular, he did not speak to ‘A’ who, according to the evidence, had been reasonably articulate and who could have been approached to give evidence in this matter.  

28.	Mr Garrett concluded, on the basis of the statements from Mr Kelly and Mr Quigg, and on the evidence of the claimant, that she had in fact said to Mr Kelly and Mr Quigg that she had ‘sat with a rolling pin’ in the home.  He accepted in                     cross-examination that he had never considered whether the claimant had actually sat with a rolling pin rather than having simply said that she had done so.  This seems odd since the claimant had made it plain that any reference that she might have made to a rolling pin had been in the context of a rhetorical question which arose from a perceived risk to her safety from ‘A’.  

29.	Mr Garrett recommended that there should be a disciplinary charge relating to the conversation on 2 April 2016.  Ms Cameron was asked by the respondent to conduct the disciplinary hearing.  She conducted that disciplinary hearing with Mr Colin Smith.

30.	The disciplinary panel considered the investigation report and the documentation, including statements, gathered in the course of the investigation process.  The disciplinary panel met on 7 November 2016 and heard from the claimant.  The claimant stated that she had been in a distressed state on 2 April 2016 and had referred to a rolling pin as a ‘figure of speech’ and as a ‘sarcastic comment’.  The claimant also stated that she knew that she should not have used those words.  She made the point that no one had ever witnessed her in possession of a rolling pin in the house and the disciplinary panel accepted that there was no such evidence.  

31.	The disciplinary panel concluded that she had said that she had ‘sat with a rolling pin beside her’ because she had felt at risk of attack from ‘A’.  The disciplinary panel concluded that in saying this, the claimant had been in breach of several procedures put in place by the respondent and by her professional body.  The disciplinary panel considered her length of service and clear record.  However, the disciplinary panel concluded that this was a matter which merited summary dismissal on the ground of misconduct.  

32.	In the course of cross-examination, Ms Cameron stated, first, that she had regarded this matter as one of ‘a threat of physical violence to a vulnerable adult’.  This was rapidly upgraded to a ‘serious threat of physical violence to a vulnerable adult’.  Neither phrase appears in the record of the disciplinary meeting or in the letter of dismissal.  

33.	While the disciplinary panel accepted that there had been no evidence before it, that the claimant had actually, at any point, had in her possession a rolling pin as a means of self defence, and even though the claimant had made it plain that any reference to a rolling pin had simply been a ‘figure of speech’, the disciplinary panel did not, at any stage, check whether there had ever at any stage been a rolling pin in the house.  It did not check whether any such rolling pin, if it had existed, had been capable of use as a weapon.  It did not, at any stage, ask the patients or indeed any of the visitors to the home whether the claimant had ever been seen with a rolling pin in her possession.  In fact it seems clear to the tribunal, from the record of the disciplinary meeting, that the disciplinary panel accepted that this had simply been a question of what the claimant had been alleged to have said rather than what the claimant had been alleged to have done.  There appears to have been an acceptance that there had been no evidence of any actual possession or use of a rolling pin as a method of self defence.  It therefore seems extremely odd, particularly in the context of cross-examination, that Ms Cameron sought to elevate this matter to an alleged and actual risk of actual physical harm.

34.	In fact, the letter of 9 November 2016, advising the claimant of her dismissal made it plain that the dismissal had been on the ground of a breach of procedures rather than on the ground of an actual or serious risk of physical violence.

	It would therefore seem that Ms Cameron was attempting to inflate the seriousness of this matter to justify the dismissal at a late stage during her cross-examination.

35.	The claimant appealed against that decision to dismiss her on the ground of misconduct.  The appeal was heard by Mr Murphy and Ms McCluskey on 27 January 2017.

36.	Mr Murphy and Ms McCluskey considered the papers gathered in the course of the investigation procedure and the disciplinary procedure.  The claimant was unrepresented in the course of that appeal meeting but agreed to go ahead without representation.  The appeal hearing appears to have been relatively short.  The claimant alleged that she had been concerned about her safety while working in the home with ‘A’.  She was also concerned about being victimised because of the allegation of breaching patient confidentiality; an allegation which had not been established.  She stated that she had not been listened to by management and that she had not been properly supervised.

37.	The appeal panel upheld the disciplinary decision and concluded that the investigation process and the disciplinary process had been conducted reasonably.

Relevant law

Unfair dismissal 

38.	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.  

39.	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.”

40.	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.”

41.	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.”

42.	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.”

43.	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.”

44.	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; whether the decision to dismiss had been within the band of reasonable options open to a reasonable employer.   

Decision

45.	In this case, the allegation is that the claimant had been unfairly dismissed by the respondent.  It is clear that the reason for the dismissal had been conduct.  There had been no other reason.  The central issue is whether or not the decision to dismiss the claimant summarily on the grounds of gross misconduct had been, in all the circumstances of this case, a disproportionate and an unfair decision.  That issue is not one on which the employer is the final arbiter.  While the tribunal must be careful not to substitute its own view for that of an employer, it is for the tribunal to decide whether the decision to dismiss the claimant had, in all the circumstances of the case, been a reasonable decision open to a reasonable employer.

46.	It is clear that the respondent can be criticised in this matter.  There had been clear failures on the respondent’s part in providing adequate supervision and support for the claimant in her difficult job of providing support to four residents while working alone in the home overnight.  The tribunal notes, in particular, that even though ‘A’ posed particular difficulties to both the staff and to other residents, and even though additional funding had been provided to the respondent precisely because of those difficulties, no additional support had been put in place by the respondent.  The claimant had been in genuine fear for her own safety.  She had been particularly distressed by the allegations made by ‘A’ that he had got a 12 year old girl drunk and that he had had sex with her.  Whether or not those allegations made by ‘A’ had been true, or whether, as subsequently alleged by ‘A’; they had been made simply to ‘wind up’ the claimant, is not the point.  The claimant had clearly been upset and distressed.  She had been receiving inadequate support from the respondent.  She clearly felt that her concerns were not being treated seriously.  She had other personal problems which were causing her particular distress.

47.	Given the statements made by Mr Kelly and Mr Quigg, the respondent had been entitled to conclude that the claimant had actually said that she had sat with a rolling pin because she had been afraid of ‘A’.  That said, it had been clear to Mr Garrett, Ms Cameron and Mr Murphy that there had been no evidence that the claimant had actually ever been seen in possession of a rolling pin and no evidence that she had ever actually kept a rolling pin as a method of self defence.  There had been no evidence that a rolling pin of any sort had ever been in the house.  No effort had been made to ascertain whether there ever had been any level of actual threat.  In fact, it appears to have been accepted by the respondent at all stages, at least until the cross-examination of Ms Cameron, that no actual or real threat of physical violence to a resident had ever occurred.  This simply had been a matter which, at its height, concerned a staff member using words that she should not have used, in the context of a heated conversation when she had been both frightened and distressed.

	Clearly, in the context of a residential home for vulnerable adults, an employer must be scrupulous in avoiding risk to those vulnerable adults.  However, that does not mean that any mere statement, without any evidence of actual risk, justifies dismissal on its own, particularly with an employee with relatively long service and a clear record.

48.	The tribunal therefore unanimously concludes that the decision to dismiss the claimant, either summarily or on notice, was a decision which no reasonable employer, acting reasonably in all the circumstances of the case, could have reached.

49.	The tribunal therefore unanimously concludes that the claimant had been unfairly dismissed by the respondent.

Contributory conduct

50.	The claimant accepted at all times and accepted before the tribunal that she should not have made any reference to a rolling pin the course of the conversation on 2 April 2016.  That said, any remark, whether in terms of a rhetorical question, or whether, as found by the respondent, to be a remark to the effect that she had sat with a rolling pin, cannot be regarded as a serious and culpable matter which would have led or in any way significantly contributed to a dismissal.  It was a matter which, in all the circumstances of the case, would have led to a warning or perhaps to some training.

51.	The tribunal therefore concludes that no reduction is appropriate on the ground of contributory conduct.

Remedy

52.	The claimant was employed for seven complete years.  She was aged 45 at the date of dismissal.  She earned £331.50 gross per week at the time of dismissal.  Her basic award for the purposes of the 1999 Order is therefore:-

9 x £331.50  =  £2,983.50

53.	The claimant had seven years’ service as a full-time employee.  The tribunal therefore awards £500.00 for loss of statutory rights.

54.	The claimant separately claims, firstly, for loss of earnings from the date of dismissal to the date of the hearing, and separately for future loss of earnings for a further 52 weeks from the date of hearing.  Compensation under Article 157 of the 1996 Order (the compensatory award) is the amount the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.

Future Loss

55.	In unfair dismissal cases, the object of the compensatory award is to compensate employees for the financial loss caused by their dismissal.  The object is not to punish employers for their wrongdoing.  An award should therefore not be increased either out of sympathy for the employee or as a means of expressing disapproval – Lifeguard Assurance Limited  v  Zadrozny [1977] IRLR 56.  

56.	In Dunnachie  v  Kingston-upon-Hull City Council [2004] IRLR 727, the House of Lords determined that the power to award compensation in respect of unfair dismissal is limited to a financial loss attributable to that dismissal.  It does not include non-economic loss such as injury to health or injury to feelings.  

57.	In the Zadrozny decision, Philips J stated:-

“The [employment] tribunal, in assessing compensation, should not fall into the benevolent error of awarding compensation, not for some loss due to the unfair nature of the dismissal, but more out of sympathy for the predicament in which the employee finds himself.”

58.	In Harvey on Industrial Relations and Employment Law, Volume 1, Division D1, at Paragraphs 2535 – 2540, two questions are indicated for the tribunal when assessing future loss.  Firstly, the tribunal must consider what would have happened but for the unfair dismissal.  It has to determine whether the employee would have continued in employment indefinitely or only for a limited period.  Secondly, the tribunal must calculate the actual loss for the period which is considered appropriate.  

59.	The fixing of a relevant period for calculating future loss is not an exercise which can be done with mathematical precision on empirical evidence.  To use the term adopted in Harvey, Volume 1, D1, Paragraph 2567, it is a highly speculative exercise.  In Wardle  v  Credit Agricole Corporate and Investment Bank [2011] IRLR 604, the Court of Appeal (GB) concluded that an employment tribunal had been wrong to award compensation by considering loss over the claimant’s entire remaining career, subject to a reduction to reflect the chance of the claimant leaving the respondent’s employment in any event.  The Court stated:-

	“I agree with Mr Jeans that it will be a rare case where it is appropriate for a court to assess compensation over a career lifetime, but that is not because the exercise is in principle too speculative.  If an employee suffers career loss, it is incumbent on the tribunal to do its best to calculate the loss, albeit that there is a considerable degree of speculation.  It cannot lie in the mouth of the employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss he actually suffers.  Furthermore, the courts have to carry out similar exercises every day of the week when looking at the consequences of career shattering personal injuries.  Nor do I accept a floodgates argument.  The job of the courts is to compensate for loss actually suffered; if in fact the court were to conclude that this required an approach which departed from that hitherto adopted, then we would have to be willing to take that step.

However, in my view the usual approach, assessing the loss up to the point where the employee would be likely to obtain an equivalent job, does fairly assess the loss in cases - and they are likely to be the vast majority - where it is at least possible to conclude that the employee will in time find such a job.  In this case the tribunal has in effect approached the case on the assumption that it must award damages until the point when it can be sure that the claimant would find an equivalent job.
 
In my judgment, that is the wrong approach.  In the normal case if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss.  The tribunal's best estimate ought in principle to provide the appropriate compensation.  The various outcomes are factored into the conclusion.  In practice the speculative nature of the exercise means that the tribunal's prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide.”

60.	The claimant in her statement of loss for the purposes of the remedy hearing has adopted the common practice of first claiming loss of net earnings to the date of hearing; in this case 15 months.  That is the common practice in cases of this type and is based on the decision of the National Industrial Relations Court (NIRC) in Norton Tool Company Ltd  v  Tewson [1973] 1 All ER 183.  

61.	The textbook in this area, ‘Employment Tribunal Remedies’ by Korn & Sethi 4th Edition states at Paragraph 6.38 that in this particular case, ‘the NIRC said that compensation should be assessed under four headings’.  It continues that the first of those headings should be:

		“Immediate loss of earnings – that is, the loss of earnings between the date of dismissal and the date of hearing.”

62.	However the NIRC does not appear to have said that in terms in the Norton Tool decision.  The NIRC when considering the correct manner for assessing compensation in relation to the loss of employment did not say that the first element in such compensation should be the loss of wages up to the date of the hearing; whether that hearing is by an employment tribunal or by some other judicial body.  The date of any such hearing is subject to considerable variation and is impacted upon by a range of matters such as the availability of parties, the availability of counsel, the availability of witnesses and the availability of listing time.  In real terms there can on occasion be significant delays in concluding cases and equally cases can move exceptionally quickly on occasion.  In the tribunal’s view, it is highly unlikely that the NIRC, or anyone else, ever intended that a significant element of compensation should be determined by such a random event as the date of the remedy hearing.  The statutory basis for assessing compensation is to assess actual loss.  It is not appropriate to assess a significant portion of actual loss by fixing that proportion to the listing dates given in that case for the determination of remedy.  

63.	In the Norton Tool decision, the NIRC separated the component parts of appropriate compensation into four headings:-

			(a)	immediate loss of wages;

			(b)	manner of dismissal;

			(c)	future loss of wages;

(d)	loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.

	In relation to the first category, ie ‘immediate loss of wages’, the NIRC was not, as appears to be suggested in the textbooks and in the claimant’s submission, stating that compensation should be awarded automatically or semi-automatically in relation to loss of earnings up to the date of hearing which determines remedy.  It was in that context looking at the requirement then contained within the Contracts of Employment Act 1973 in relation to notice pay on the termination of employment.  It was focusing therefore on the amount of notice pay that an unfairly dismissed employee would have received if he had been dismissed in the proper manner.

	The NIRC stated:-

		“(a)	Immediate loss of wages

The Contracts of Employment Act 1963, as amended by the Industrial Relations Act 1971, entitles a worker with more than 10 years’ continuous employment to not less than six weeks’ notice to terminate his employment.  Good industrial practice requires the employer to either give this notice or pay six weeks’ wages in lieu.  Mr Tewson was given neither.  In an action for damages for ‘wrongful’ as opposed to ‘unfair’ dismissal he could have claimed this six weeks’ wages but would have had to give credit for anything which he earned or could have earned during the notice period.  In the event he would have had to give credit for what he earned in the last two weeks, thus reducing the claim to about four weeks’ wages.  But if he had been paid the wages in lieu of notice at the time of his dismissal, he would not have had to make any repayment upon obtaining further employment during the notice period.  In the context of compensation for unfair dismissal we think that it is appropriate and in accordance with the intentions of Parliament that we should treat an employee as having suffered a loss insofar as he receives less than he would have received in accordance with good industrial practice.  Accordingly no deduction has been made from his earnings during the notice period.”

64.	The Norton Tool decision concerned a claimant who had found alternative and comparable employment four weeks after dismissal.  It is not possible to discern from this decision any general proposition that an unfairly dismissed person should automatically, or presumptively, receive compensation for loss of wages up to the date of the remedy hearing, particularly where the relevant time period exceeds any statutory or contractual notice period in this case, and amounts to some 15 months.

65.	Therefore the issue in the present case and indeed in all such cases appears to be the speculative exercise of assessing when the claimant could be expected to obtain alternative equivalent employment and therefore fixing an appropriate point for future loss which should run from the date of dismissal and which should not depend in any way on the date on which the tribunal determined remedy .

As the Court of Appeal (GB) said in Wardle (see above), the tribunal should assess the loss up to the point at which the claimant would be likely to get another job, while recognising that this is a very speculative and unscientific exercise.

66.	As far as the compensatory award is concerned, the tribunal must focus on any financial loss which was consequent on the dismissal and which was attributable to the actions of the former employer.  In all the circumstances of the present case, there does not appear to have been any such financial loss.

67.	The claimant had been absent on sick leave when she was dismissed on 10 November 2016.  She had applied for employment support allowance on 19 October 2016, on the basis that she had not been fit for work with her then employer.  She had been awarded employment support allowance, including an additional weekly payment, because she had been deemed severely disabled at that time.

68.	Payment of employment support allowance remained in place and was increased from 13 April 2017.  The claimant did not notify the Social Security Agency that her circumstances had changed and did not, in particular, suggest to the Social Security Agency that she had been fit for work at any stage.

69.	The claimant suggested to the tribunal in evidence that she had been fit for work from December 2016.  The tribunal is satisfied that this was not the case.  The claimant had remained unfit for work throughout this period.

70.	The claimant had applied for a post with another employer on 24 April 2017.  The application form, which had been completed by the claimant, was produced to the tribunal.  That application form was clearly somewhat flexible about the truth.  The claimant stated on that application form that she had been employed at that stage with an annual income of £18,000.00.  That had clearly not been the case.  The application also stated that she had taken no days off work on sick leave in the previous two years.  That was also clearly not the case.  The health declaration which had been attached to that application form had also been significantly inaccurate.

71.	The significance of this job application is not entirely clear.  On the balance of probabilities, it appears to have been no more than an attempt by the claimant to create a paper history of seeking other employment, for the purposes of the present tribunal claim.

72.	The claimant is in receipt of a Personal Independence Payment which is a                               disability-based Social Security benefit.

73.	The claimant has not seriously sought alternative employment following her dismissal.  She did not register on the HSC website which would have been an obvious port of call for anyone who had actually been seeking employment in this particular area.  She did not register with any employment agencies.  The tribunal is satisfied that she did not actively seek alternative employment because she was not at any stage fit for alternative employment or indeed for any employment.

74.	The tribunal therefore concludes that in the circumstances of this case, the claimant has suffered no financial loss as a result of her dismissal.  She has not sought alternative employment since that dismissal because she has been unfit for work.  She has been reliant on Social Security benefits.  That would have been the case if she had remained in the employment of the respondent, whose contractual sick pay arrangements would have expired.

No compensatory award for the purposes of the 1996 Order is therefore payable in the circumstances of this case.

75.	The tribunal therefore awards a basic award of £2,983.50 and compensation for loss of statutory rights of £500.00, making a total award of £3,483.50.

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

Vice President

Date and place of hearing:	7 – 8 August 2017, Belfast

Date decision recorded in register and issued to parties: