Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 5485/18

5486/18

 

 

CLAIMANTS: 1. David Graham

2. Conor Graham

 

RESPONDENT: Drinks Inc Limited

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimants were automatically unfairly dismissed, however their conduct contributed 100% to their dismissals and therefore no compensation is awarded.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Orr

 

Members: Mr K McGeown

Mr J Smith

 

 

Appearances:

 

The claimants represented themselves.

 

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by O'Reilly Stewart Solicitors.

 

 

CLAIMS

 

1. The claimants' claim they were unfairly dismissed and that their dismissals were automatically unfair by the failure of the respondent to follow the statutory dismissal procedures.

 

2. The respondent's representative accepted that the respondent failed to follow the relevant statutory dismissal procedure but asserted that the dismissals were fair as the claimants had contributed entirely to their dismissals and further that " Polkey" deductions apply in this case as dismissal would have followed in any event, even if fair procedures had been followed.

 

SOURCES OF EVIDENCE

 

3. The case proceeded by way of witness statements which had been exchanged in advance of the hearing. Mr Conor Graham and Mr David Graham gave evidence

 

on their own behalf. Mr John McNally, warehouse manager and Mr Stephen Brown, logistics director gave evidence on behalf of the respondent.

 

RELEVANT LAW

 

4. Unfair Dismissal

 

Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides insofar as is relevant to these proceedings;-

 

"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."

 

5. The test to be applied in the case of an alleged misconduct dismissal is known as the " Burchell Test" or the "band of reasonable responses" test. This was confirmed by the Northern Ireland Court of Appeal in Rogan v South Eastern Health and Social Care Trust (2009) NICA 47 in approving the Court of Appeal decision in Dobbin v Citybus Limited (2008) NICA 42: -

 

"(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 ................... 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."

 

6. The recent Northern Ireland Court of Appeal case Connolly -v- Western Health and Social Care Trust 2017 (NICA) 61 held:

 

"The question in each case is whether the Industrial Tribunal considers the employer's conduct to fall within the band of reasonable responses".

 

"The interpretation of what, in this jurisdiction, is Article 130(4) (a) of the 1996 Order has been fixed by a series of Appellant Courts over the years, ie, that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would make. That test, expressed in various ways, is too long established to be altered by this Court, and in any event has persuasive arguments in favour of it. But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie, that that decision 'shall be determined in accordance with equity and the substantial merits of the case' ...".

 

Automatic Unfair Dismissal

 

7. Article 130A of the Employment Rights (NI) 1996 Order provides:

 

"(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

 

(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

(b) the procedure has not been complied with; and

 

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

(2) Subject to Paragraph 1 failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

 

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order".

 

8. The statutory procedures require employers to follow specific procedures when subjecting employees to disciplinary action or dismissal. Failure to comply with the relevant statutory dismissal procedure impacts on compensation in relation to a claim of unfair dismissal - an adjustment upwards in the case of default by the employer or an adjustment downwards in the case of default by the employee. Articles 17(2) and 17(3) of the Employment (NI) Order 2005, provide that the tribunal must adjust any award by at least 10% and if the tribunal considers it just and equitable, in the circumstances, up to 50%. Under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable. Any potential uplift or reduction is limited to the compensatory award only.

 

9. The EAT in Alexander v Bridgen (2006) IRLR 422 set out the relationship between the statutory procedures and fair or unfair dismissal as follows:

 

( 1) if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is the chance of dismissal was more than 50%, the dismissal is fair;

(2) if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made;

(3) if no statutory procedures were followed there is automatic unfair dismissal and four weeks' pay is the minimum which must be paid and can be increased by 10 to 50% unless the award of four weeks' pay would result in injustice to the employer .

 

10. Article 154 of the Employment Rights (Northern Ireland) Order 1996 provides:

 

"1 (A) Where -

 

(a)           an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason), and

 

the industrial tribunal shall, subject to paragraph 1(B), increase the award under 152 (1) (a) to the amount of four weeks' pay.

 

(6) An industrial tribunal shall not be required to make an award under paragraph (1A) if it considers that such an award would result in injustice to the employer."

 

Contributory Conduct

 

11. Article 156(2) of the Employment Rights (NI) Order 1996 provides:

 

"Where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

 

Article 157(6) of the Employment Rights (Northern Ireland) Order 1996 provides:

 

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

 

12. If the tribunal concludes that an employee was guilty of culpable or blameworthy conduct which contributed to his dismissal, both the basic award and compensatory award must be reduced by the same percentage - McFall v Curran (1981) NICA.

13. If the employee is wholly to blame for the dismissal compensation may be reduced by 100% Hollier v Plysu Limited (1983) IRLR 260.

 

14. In the case of Steen v ASP Packaging Ltd (2014) ICR 56 the EAT held that the correct approach for the tribunal is to:

•                      identify the conduct which is said to give rise to possible contributory fault

•                      decide whether that conduct is culpable or blameworthy, and

•                      decide whether it is just and equitable to reduce the amount of the basic award to any extent.

 

"Polkey" Deduction

 

15. The House of Lords held in Polkey v Dayton Services Ltd (1987) 3 ALL England ER 974 that if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if the employer can satisfy the tribunal that following the procedures correctly would have made no difference to the outcome.

 

16. In the case of Software 2000 Ltd v Andrews (2007) UKEAT/0533/06 , Elias J gave guidance on this issue: -

 

"54 (1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

 

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

 

RELEVANT FINDINGS OF FACT

 

17. The respondent company operates a drinks distribution business. Both claimants were employed as warehouse operatives at their Falcon Road premises. The factual circumstances which led to the dismissal of the claimants were not in dispute between the parties.

 

The claimants accepted in cross-examination that they had a history of absenteeism, timekeeping issues and failure, on their part, to comply with company policy/procedure in relation to the absence notification procedures.

 

18. At the time of the dismissals, the claimants had current/live final written warnings in respect of absenteeism and time keeping: Mr David Graham's was dated 10 October 2017 and Mr Conor Graham's was dated 5 October 2017. Neither of these final written warnings were appealed and the claimants accepted in cross-examination that they had poor attendance records. Mr David Graham had a total of 32 days absences from 31 January 2017 until the date of his dismissal (8 January 2018). Mr Conor Graham had 22 days absence from 15 May 2017 until the date of his dismissal. (8 January 2018).

 

19. The final written warnings issued to both claimants by the warehouse manager
Mr McNally stated -

 

"The reason for this warning is that your absenteeism and timekeeping has been very poor to date in your employment with Drinks Inc.......

 

I feel that this behaviour is unacceptable and must improve dramatically to meet my satisfaction, if continued this could result with instant dismissal. You must follow all company policies for non-attendance and any lateness from your employment, you must also inform and report to a manager by telephone call and not text message which you have repeatedly done and again on this occasion, also a phone call off (sic) your progress for each day while sick. I will therefore be monitoring this over the coming weeks to check your progress".

 

20. Both claimants were absent from work from 27 December 2017 to 5 January 2018 and neither made a telephone call to their line manager throughout that period, contrary to the specific work instructions recorded in the final written warnings. In their evidence the claimants accepted that they did not contact the respondent by telephone at any time between 27 December 2017 and their return to work in 8 January 2018.

 

21. At 9.49 am on 27 December 2017 Mr John McNally (Warehouse Manager) sent a text message to David Graham - "will you be coming into work"? He received no response and sent a further text message at 10.04 "you both need to ring new (sic) asap". It was common case that no phone call was made by either of the claimants and any attempt to contact them via telephone failed as they did not answer. At 11.44 am Mr John McNally received a text from David Graham stating that their grandfather was ill and that neither he nor Mr Conor Graham will be attending work. Mr McNally texted David on 27 December 2017 as follows "you both know your circumstances david I will require proof of this from the hospital asap".

 

22. On 28 December 2017 Mr McNally received a further text message from Conor Graham stating "John we r not going to be in today either, our grandad is still bad and we need to be here, I will let yous (sic) know what is happening". Mr McNally responded stating "Conor I will require proof of this from a doctor as I said to David I do understand family is important but so is your job this is not good".

23. It was not disputed that the claimants' returned to work on 8th January 2018 having made no further contact with their employer. Upon their return, neither claimant provided sick certificates or medical evidence to cover their period of absence. It is common case between the parties that a meeting was held on 8 ^th January 2018 with both claimants, at the end of which they were dismissed. The respondent sent a letter to each claimant dated 9 ^th January 2018, the letters were identical and stated as follows:

 

"I write further to our meeting on Monday 8 ^th January 2018.

 

It has come to the Company's attention that there are a number of serious concerns relating to your conduct. These serious concerns include the following:

 

1. You failed to attend work during the period Wednesday 27 ^th December 2017 to Friday 5 ^th January 2018. In fact you failed to attend work for any of your usual working shifts during this period.

 

2. Despite having previously been made aware of your obligations to contact the Company if you are unable to attend work, you failed to make necessary and appropriate contact with your line manager or any other appropriate representative of the Company during your period of absence.

 

Following discussion of the above mentioned matters in our meeting on Monday 8 ^th January 2018, I concluded that by your actions you have fundamentally and irrevocably breached the Company's trust and confidence in you. Although I carefully considered the options open to me in relation to following the usual statutory dismissal procedure, I was satisfied that in the circumstances it was appropriate for me to follow the modified dismissal procedure.

 

I confirm the following reason for your summary dismissal:

 

1. Your failure to attend work during the period 27 ^th December 2017 to Friday 5 ^th January 2018 is entirely unacceptable. Whilst it is appreciated that these working days fell over the Christmas holiday period, you did not use your annual leave allowance to book leave during this period. It was made clear to you that you were required to attend work during this period. The Company was relying upon you attending for work. By your actions you placed the Company and its staff in serious difficulties.

 

2. You have been informed in writing on two prior occasions of the Company's procedure that you are required to follow when unable to attend work. You were informed in June 2017 and again in October 2017 of the Company's procedures. You deliberately choose to ignore these advices.

 

3. The Company made numerous attempts during the period
27 ^th December 2017 to Friday 5 ^th January 2018 to contact you to ascertain why you had not attended work. You advised your Grandfather was unwell. Although I have considered your reasoning provided I am not satisfied that this is acceptable. Certainly I am satisfied that despite your Grandfather's illness, it was reasonable for you to contact the Company to advise of your inability to attend work.

 

4. I have also considered that you received a verbal warning on
13 ^th June 2017 in relation to your failure to follow the Company's policy in respect of absence. In addition you also received a final written warning under cover of a letter dated 10 ^th October 2017. Again the final written warning was issued to you as a result of your absenteeism and time keeping. You were warned that should your poor attendance continue you would risk yourself at risk of summary dismissal.

 

You were also warned that you must follow all Company policies and procedures for non-attendance and any lateness, reporting to a manager by phone call and not text message. You were advised that you must call your manager each day whilst off sick to provide an update.

 

5. I note that despite attending work on Monday 8 ^th January 2018, you were over 1 hour late for your shift.

 

6. I consider by your actions that you have fundamentally and irrevocably breached the Company's trust and confidence in you. Such trust and confidence is not capable of being restored.

 

Therefore and in accordance with the modified statutory dismissal and disciplinary procedure, the Company had no alternative but to immediately and summarily dismiss you from your employment on the grounds of gross misconduct.

 

I am therefore writing to you to advise you of your summary dismissal and provide the above detailed reasons for such action by the Company. Upon receipt of this letter please immediately return all Company property within your possession. Please contact me to make all necessary arrangements in this regard.

 

Your dismissal date is therefore 8 ^th January 2018. As you will be aware you have already received payment in respect of your January 2018 salary. You are therefore required to reimburse the Company the sum of £780.16. Details of the calculation are enclosed - you owe all of your January- 18 salary, 3 days of December-17 (27 ^th, 28 ^th and 29 ^th) less your overtime owed to you for the week ending 22/12/17.

 

Upon receipt by the Company of this payment due and owing from you, the Company will provide you with a copy of your Forklift Licence.

 

Under the modified statutory dismissal and disciplinary procedure you have the right to appeal against this decision by stating your grounds of appeal in writing within 5 working days from receipt of this letter. Should you wish to appeal you should send your written grounds of appeal to Gareth Nethercott. Thereafter an independent appeal hearing will be organised and the Company will write to you further in that regard."

 

The claimants did not appeal the decisions.

 

DECISION

 

24. The factual circumstances which led to the dismissal of the claimants were not contested by the claimants. They both accepted in cross-examination that at the time of their dismissals both had current/live final written warnings in respect of absenteeism and timekeeping. The claimants accepted that the final written warnings had made clear to them that they must notify their line manager by a telephone call and not text in relation to future absences. In cross-examination the claimants provided no explanation as to why they did not or could not contact their line manager on a daily basis by telephone call from 27 December 2017 until 5 January 2018. Their evidence to the tribunal was that their grandfather was ill and that they attended him in hospital throughout the entire period of time from 27 December 2017 to 5 January 2018, save for returning home at night for the purposes of sleeping. The tribunal does not accept that there was no opportunity between 27 December 2017 and 5 January 2018 to make a telephone call to their line manager or that they could not, on a daily basis, make a telephone call updating their employer on their absence. David Graham's evidence was that "family was more important than work". There was no evidence provided by the claimants as to why they could not comply with the absence notification procedure. Mr David Graham stated that despite being on final written warnings, the terms of which he did not appeal and which he accepted, he expected the employer to "give a bit of leeway". Mr Conor Graham's evidence was that despite the issuing of the final written warning and its contents which he fully accepted and understood, he expected the employer to have "had a chat with us" in relation to the conduct. Both claimants accepted in cross-examination that they had not followed the correct notification procedures or the specific work instruction set out in the final written warnings.

 

25. The respondent's evidence was that the claimants were required to report for work on 27, 28 and 29 December 2017 and from 2-5 January 2018. The claimants alleged they had pre-booked annual leave for 2 and 3 January 2018 however there was no documentary evidence of this or of annual leave being pre-approved. The claimants did not submit sick certificates or any medical evidence to their employer at any time covering absences arising from their grandfather's illness and none was produced at the hearing. The claimants accepted December was the busiest time of the year for the respondent due to a high volume of work, bank holidays and fewer delivery days to accommodate increased demand. They also accepted that their absence resulted in additional hours/overtime for other members of staff, increased pressure for the respondent and staff and caused the respondent company difficulties.

 

26. The claimants both accepted in cross-examination that they provided no explanation for their conduct at the meeting on 8 January 2018. Furthermore they provided no mitigating factors including medical evidence either at the meeting on 8 January 2018 or at the Tribunal. The evidence of both claimants was that had a disciplinary hearing been arranged by letter in advance of 8 January 2018 or thereafter their response to the disciplinary charge of misconduct would have been the same.

 

27. During the tribunal hearing, the claimants confirmed that they were unhappy with the "manner" in which they were dismissed and felt that the dismissals should have been at separate meetings with each claimant and not in a glass office where other staff were aware of a meeting with the claimants.

 

28. Aside from the issue of automatic unfair dismissal (in respect of the respondent's non-compliance with the relevant statutory procedure), the tribunal makes the following findings in relation to the dismissals:-

 

•                      the reason for the claimants' dismissals was conduct - failure to attend work (unauthorised absence), failure to make telephone contact with the line manager and failure to provide daily updates to a line manager during a period of absence; which is a potentially fair reason under the legislation.

 

•                      the respondent was not required to extensively investigate the actions of the claimants as the claimants did not dispute that they had failed to report for work, that their absences were unauthorised or that they had not complied with the absence notification procedure.

 

•                      the claimants were on live final written warnings for essentially the same misconduct.

 

•                      the claimants had been warned that any further acts of misconduct of this nature would result in instant dismissal

 

•                      the claimants provided no satisfactory explanation for their conduct at the meeting of 8 January 2018.

 

The respondent purported to follow the modified statutory procedure in relation to the claimants' dismissals, however as properly accepted by the respondent's counsel, the respondent did not comply with the relevant statutory dismissal procedure and therefore the Tribunal finds that the claimants were automatically unfairly dismissed.

 

29. The tribunal finds that the dismissals are technically and procedurally unfair however is satisfied from the above findings of fact that, apart from the failure to follow the relevant statutory procedure the tribunal finds that the dismissals were substantively fair and decisions which an employer acting reasonably could have taken given all of the circumstances.

 

30. In finding that the claimants have been automatically unfairly dismissed in circumstances were the relevant statutory dismissal procedures were not complied with, the Tribunal considered the respondent's contention that no compensation is due to the claimants as they contributed to their dismissals by their own culpable acts or omissions and further that a "Polkey" reduction applied in respect of any compensatory award to reduce the award to nil.

 

31. The Tribunal is cognizant of the findings of Langstaff P in the Steen -v- ASP Packaging Ltd (2013) UKEAT 0023 in which he confirmed that it is necessary for the tribunal to focus on what the employee did or failed to do and not rely on the employer's view of what he had done......; and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so to what extent the award should be reduced and to what extent it is just and equitable to reduce it. The Tribunal finds that the claimants' conduct was entirely culpable and blameworthy and contributed wholly to their dismissals. The claimants were fully aware of the requirement to contact their line manager by telephone call and the Tribunal finds that they deliberately and intentionally failed to do so without explanation in the face of live/current final written warnings for essentially the same misconduct. The claimants accepted in cross-examination that they were aware from the content of the final written warnings what was required from them in the event of absence and they made no attempt to comply with the these specific instructions over a considerable number of days. It was the claimants' responsibility to contact their line manager by telephone call when absent, maintain contact on a daily basis and report for work, both claimants failed to do so without adequate explanation. Accordingly the Tribunal considered it just and equitable to reduce both the basic and the compensatory award by 100% due to their culpable conduct.

 

Given the Tribunal's decision in relation to contributory conduct, the compensatory award in this case has been extinguished, therefore the extent of "Polkey" has no real practical impact. Nonetheless the Tribunal determines that given its findings of fact set out above there would have been a 100% "Polkey" reduction in the compensatory awards in the circumstances of these claims. Based on the evidence, the Tribunal finds that the claimants would have ceased to be employed had fair procedures been followed. The respondent's purported to follow the modified statutory procedure and the claimants were given the opportunity to appeal but chose not to. The Tribunal finds that the claimants would have been dismissed in any event based on the following:

 

(1) The claimants had current and live final written warnings.

 

(2) The claimants committed further acts of almost identical misconduct.

 

(3) The claimants had no satisfactory explanation for their conduct, no mitigating circumstances and confirmed that had a meeting been arranged in advance via correspondence or at a later date, their response to the allegations would not have changed.

 

(4) The claimants did not appeal their dismissals when offered the opportunity to do so. Therefore even if the respondent had followed their disciplinary procedure or the statutory procedure there is no evidence that the claimants would have appealed that decision given that they did not appeal when offered.

 

32. Failure to comply with the relevant statutory procedure results in a finding of automatic unfair dismissal and the tribunal must therefore award four weeks' pay, unless it finds this would cause injustice to the employer. The Tribunal finds that there would be an injustice to the employer in all the circumstances of these dismissals for the following reasons:

 

(1)           The tribunal finds that the claimants contributed 100% to their dismissal.

 

(2)           The respondent did follow the modified statutory procedure and the claimants did not avail of their right of appeal.

 

(3)           The tribunal finds that the claimants would have been dismissed in any event had fair procedures been followed.

 

(4)           At the date of hearing, the claimants accepted that they had been overpaid by the respondent in their January 2018 salary, David Graham by £780.16 and Conor Graham by £778.72, they had still not repaid these monies to the respondent which was over 9 months later and gave no indication to the respondent or the tribunal when these would be repaid

 

33. In summary, the Tribunal finds that the claimants were automatically unfairly dismissed. However, their conduct contributed 100% to their dismissals and therefore no compensation is awarded.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 23-25 October 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: