FAIR EMPLOYMENT TRIBUNAL

CASE REF:	330/02FET
1789/02

CLAIMANT:	Avril Calvert

RESPONDENT:	John Woods (L) Ltd

DECISION
The unanimous decision of the Tribunal is that:-

1.	The claimant was not unlawfully discriminated against on the grounds of her religious belief or on the grounds of her sex.

2.	The claimant was unfairly dismissed by the respondent.  The Tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £3,300.59.

3.	The claimant’s claim of a breach of her human rights, relating to privacy, is dismissed following its withdrawal without any objection by the respondent.

Constitution of Tribunal:

Chairman:		Mr N Drennan QC
Panel Members:	Ms R McKinty
			Mr P McCrossan

Appearances:

The claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Gus Campbell, Solicitors.

The respondent was represented by Ms S Keegan, Barrister-at-Law, instructed by J J Haughey, Solicitors.

Reasons

1.1	The claimant presented an originating application to the Fair Employment Tribunal and the Industrial Tribunal on 30 July 2002, in which she claimed that she had been unfairly dismissed by the respondent on 2 May 2002; and further that she had been unlawfully discriminated against on the grounds of her sex and/or on the grounds of her religious belief.  Mr McEvoy, at the outset of the hearing, stated that the said unlawful discrimination alleged by the claimant related to the unfavourable treatment suffered by her, in comparison to other employees, in relation to her said dismissal.  Further at the outset of the hearing, Mr McEvoy expressly withdrew any claim by the claimant, as set out in her originating application, relating to a breach of her human rights relating to privacy.  There was no objection to the said withdrawal by the respondent; and it was agreed that the said claim would therefore be dismissed by the Tribunal.  Mr McEvoy further acknowledged that the claimant’s claim of breach of contract was subsumed in her claim of unfair dismissal and that it was therefore not necessary for the Tribunal to make any separate finding or award in relation to the said claim.

By Notice of Appearance, presented to the Tribunals on 7 October 2002, the respondent admitted that the claimant was dismissed on 2 May 2002 in accordance with her contract of employment, after the respondent was satisfied that she had committed offences amounting to gross misconduct.  The respondent further denied that the claimant had been treated less favourably on the grounds of her religious belief and/or her sex.  Mr McEvoy confirmed that his client was not making any claim for personal injuries arising out of the alleged unlawful discrimination.

1.2	There was no dispute between the parties that the claimant, at the date of her dismissal, was aged 31 years old and had been employed by the respondent from 7 October 1991 until in or about May 2002.  As appears later in this Decision, it will be necessary to consider further the precise date of dismissal in May 2002.  It was further not disputed between the parties that, at the date of her dismissal, the claimant was earning the sum of £258 gross per week and £203.55 net per week.  Mr McEvoy further confirmed that the claimant, in relation to her claim of unfair dismissal, was not seeking reinstatement or reengagement.

2.	The Tribunal made the following findings of fact:-

2.1	The claimant, a Protestant, was initially employed by the respondent as an orders processor and was also required to work in the shop when necessary.  It was apparent that she always maintained a good relationship with John Woods, the Managing Director of the respondent.  The respondent is a company which trades under the name of “Linwoods” supplying milk and bread to over 1,500 shops and other retail outlets in Northern Ireland.  It is a company which has grown considerably over the period of the claimant’s employment.  Despite his position and the increasing growth of the company, the Tribunal noted that Mr Woods maintained a close ‘hands on approach’ to the everyday activities of the company and of his employees and the work carried out by them.

2.2	In or around 1999 Mr Woods, following interview, offered the claimant on a trial basis a sales position in the company.  Unfortunately, due to no fault of her own, it soon became apparent that the claimant was not suited to the post; and, after discussion with Mr Woods, a hybrid post was created for her by him.  In essence, the hybrid post required her to work in the reception in the morning; and, in the afternoon, in dispatch carrying out a similar role to her previous position as an orders processor.  Initially, the claimant had some complaint about the requirement, on occasion, to leave her position to work in the shop, but the claimant accepted that from in or about December 2000 her complaint about the foregoing was satisfactorily resolved and that from then on she had no complaints about her work in the hybrid post, nor had she any complaint in relation to her line manager.

To enable the claimant to be facilitated in the role of receptionist in the morning, as set out above, a relative of Mr Woods was made redundant – which, in the Tribunal’s view, was a further illustration of the good relationship Mr Woods had with the claimant and the efforts he was prepared to make when trying to find her alternative work after the sales position had not proved to be suitable.

2.3	The Tribunal is satisfied that the offer of the sales position and her work in that position and her subsequent taking up of the said hybrid position in the reception and dispatch had no relevance to the claims of the claimant, which the Tribunal is required to determine in this matter.

2.4	Prior to the events in May 2002, Mr Woods at all times took a close personal interest in the claimant’s work, encouraging her at all times.  He allowed her to put up posters in the shop relating to the sale of turkeys/chickens reared by her at her home; and, on one occasion, had granted her an interest-free loan.

2.5	In her hybrid position, like other employees employed in the office, the claimant was not required to operate a clock card system.  A clock card system was in operation for other manual employees of the respondent.  The claimant, like other office staff, was required to enter the hours that she had worked on any particular day in what was known as the “Day Book”; she was required to enter accurately her start and finish times and the period which she took for lunch.  From these entries, the claimant’s pay and holidays were calculated.  The system, as set out above, was operated in a somewhat informal manner.  Whilst the respondent clearly would have wished such entries to be entered into the Day Book when the member of staff was entering and leaving work on any particular day, it seems that a practice had grown up amongst the office staff, which the respondent had not stopped, whereby it was permitted to enter the relevant data into the book after the event and/or even on subsequent days.  However, this was always with the clear proviso that what was entered was accurate.  Whilst the Tribunal was of the view that it might have been preferable if a more formal system had been adopted by the respondent, and indeed if it had been might have prevented some of the difficulties that subsequently arose, the Tribunal has no doubt that the claimant was at all times fully aware that, if she entered into the Day Book relevant times when she started and finished work, albeit some days later on occasion, the entered information had to be accurate.  The claimant was also fully aware that if she entered times of work, when she was not in fact working for the respondent, that this had a monetary consequence which was in her favour and to her employer’s detriment.  The Tribunal is satisfied that the reason for the claimant’s dismissal in May 2002 was not related in any way to her failure on her part to fill in the Day Book, when entering and leaving work, but solely related to the accuracy of the entries when they were made by her.

2.6	In or about March 2002, Ms G Robinson, the office manager and the claimant’s line manager, following a complaint from another member of staff, became concerned and suspicious that the claimant was not accurately recording her relevant times of entering and leaving her work in the Day Book.  She reported her concerns and suspicions to Mr Woods.  Mr Woods was not prepared to act on mere suspicion and he instructed Mr P Laffin, the respondent’s in-house accountant, to carry out observation from his office and record the claimant’s starting times in the morning and her finishing times in the evening; and to compare his findings, which he noted in his work diary for a period of three weeks, with the times entered by the claimant in the Day Book.  He was unable to observe and record the claimant’s lunch breaks.  As a result of his said comparison, he reported to Mr Woods that he had calculated that the claimant had wrongly recorded some 232 minutes over the said period, which he calculated involved an approximate loss to the respondent of £24.

2.7	Following the findings of Mr Laffin, which were not disclosed to the claimant at that time by Mr Woods, Mr Woods decided that he wanted more formal and accurate proof relating to the claimant’s timekeeping and her recording of same, including details of her movements at lunchtime, and how these were recorded by her.  Mr R Orr, of Successful Security, a firm of security consultants, was engaged to install a CCTV camera with a view of the car park and, to monitor the entry and leaving of the claimant’s vehicle from the respondent’s car park.  Video recording equipment linked to the camera was set up and Mr Woods, after instruction from Mr Orr, inserted video tapes on a daily basis.  The relevant dates and times were recorded on the tapes, which were subsequently collected by Mr Orr, who analysed them.  Soon after 27 April 2002, Mr Orr produced a report to Mr Woods setting out his findings relating to the entry and leaving times of the claimant’s vehicle over a ten day period between 15 April 2002 and 27 April 2002.  The Tribunal is satisfied that the system installed by Mr Orr was appropriate and accurate and the findings prepared by Mr Orr were a true and proper record of the movements of the claimant’s vehicle in the said period, as set out in the report.

2.8	Following the receipt of the said report, Mr Seamus McMahon, the General Manager of the respondent, carried out an analysis of the findings of Mr Orr and the entries in the Day Book, as recorded by the claimant.  He found the claimant, over the said ten day period had overstated the hours worked by approximately 322 minutes, which he calculated involved a loss to the company of approximately £36.92, equating to approximately £17 per week.  These calculations were not challenged by the claimant.  Mr McMahon referred his findings to Mr Woods, who decided to have a meeting with the claimant.  Mr Woods was clearly very disappointed on a personal level by what the findings revealed, given his previous good relationship with the claimant.  He was clearly of the opinion that, if correct, the findings demonstrated a clear breach of trust on the part of the claimant.  It was further clear that matters of trust between an employer and an employee were something upon which Mr Woods placed considerable reliance and that any loss of trust was something which he was not prepared to countenance.  Mr Woods, from the outset, in the opinion of the Tribunal, held the view that if the discrepancies, as found, were correct then the claimant had breached that trust and, having crossed the divide, could no longer remain in employment with the respondent.

2.9	On 2 May 2002 the claimant, without any prior warning, was asked to attend a meeting with Mr Woods in the boardroom.  The Tribunal has no doubt that this meeting was intended to be a disciplinary meeting, but, despite same, at no time prior to attendance at the meeting was she given any indication of the nature of the meeting or the matters which were to be discussed at that meeting.  Mr McMahon was also present at the meeting, having been asked to attend by Mr Woods.

2.10	Mr Woods informed the claimant that she and the other office staff were trusted to record their working hours in the Day Book, including the recording of the length of time taken for lunch, which the claimant did not dispute; he informed her the respondent had monitored her hours of work over a period of time using video surveillance equipment and had found discrepancies between the times recorded by her in the Day Book and those recorded in the video recordings.

The claimant was given examples from the Day Book and the findings of the security consultant to illustrate the discrepancies.  She accepted the discrepancies.  She was asked for an explanation, which she was unable to give.  She declined the opportunity to look at further examples.  There was some dispute whether the claimant, in accepting the said discrepancies, indicated that she had been careless or reckless.  Given her willingness to readily admit the discrepancies, the Tribunal concluded that, on balance, she had admitted that her actions were reckless.  Reference to such an admission was also to be found in the respondent’s notes of the meeting.  It has to be noted that at no time has the claimant ever challenged the discrepancies, nor disputed that she made incorrect entries in the Day Book, as outlined by Mr Woods, nor the amount of loss to the company, as set out above.

2.11	The claimant, faced with these matters, of which she had no prior warning, was in a state of shock and taken totally by surprise, which must have been clear and obvious to Mr Woods.

2.12	Following the above exchange, the claimant was then informed by Mr Woods that she had committed a disciplinary offence.  It was only at this stage that he asked her if she would like any member of staff to be present with her.  She had not been offered any such support prior to this.  It is acknowledged that the claimant agreed to the attendance of Mr McMahon, albeit he had been invited to the meeting by Mr Woods and had played a role in the matters presented to the claimant at the meeting.  It was not suggested by Mr Woods that she might like the attendance of someone other than a member of management.

Mr Woods then made reference to the fact that fraud, theft and clocking offences were listed in the respondent’s disciplinary rules as examples of gross misconduct and she was then asked to identify, on the list, which offence did she believe she had committed.  She made clear she did not accept she had been guilty of theft or fraud, but accepted that she had been guilty of a clocking offence, which category was then ringed for her by Mr Woods.  Mr Woods, at no time prior to this, put to the claimant which of the said offences listed in the rules the respondent was relying on.

2.13	Mr Woods indicated to the claimant that he considered her actions to be serious and made it clear, despite her insistence that she would wish to stay with the company, that he considered her position to be untenable, in the light of such serious offences and that if she did not resign she would be dismissed.  Faced with such a choice, the claimant resigned with effect from 2 May 2002 and signed a note to that effect, the precise wording of which was dictated for her by Mr Woods.  Mr Woods did not contemplate any other means of dealing with the said offence committed by the claimant.

2.14	The claimant left the meeting on 2 May 2002 in a total state of shock and did not believe what had happened to her.  On that date, the respondent considered that the claimant’s employment had terminated.  Indeed, the claimant was not paid any sums by the respondent in respect of any period thereafter and in the Notice of Appearance has stated she was dismissed on that date.

2.15	By letter dated 7 May 2002 the claimant wrote to Mr Woods stating she wished to appeal against her dismissal, albeit she had signed the resignation note referred to above, and requested an appointment with him.  It was agreed he would meet her on 10 May 2002.

2.16	On 10 May 2002 the claimant went to see Mr Woods.  Prior to the meeting she handed in a letter, which set out her contention, inter alia, that she believed that, although she had resigned, she had in fact been dismissed by the respondent and was seeking to appeal the said decision to dismiss her and referred to the use by the respondent of alternative sanctions.  Mr Woods did not read the contents of the letter before seeing her.  No one else was present at the start of the meeting.  He asked her to explain why, if she had now resigned, she was now seeking to appeal such a resignation.  The claimant explained that in her mind there was no difference between a forced resignation and a dismissal, and that she therefore wished to withdraw her resignation.  Mr Woods, in response, merely stated that he would consider her proposed withdrawal.  At this point he then opened the letter and agreed to the presence of the claimant’s sister-in-law – but merely as an observer and not as a representative.  He then also asked Mr McMahon to attend the meeting.  Following their arrival, the claimant’s letter, referred to above, was read out and she relied on the contents of the letter as the grounds of her said appeal.  In so doing, she reiterated that she wished to withdraw her resignation, which amounted to a dismissal.  While she did not dispute the discrepancies between the entries in the Day Book and those shown to her as found by Mr Orr, she stressed that after her long period of service she had been unfairly dealt with and a warning, rather than dismissal, would have been an appropriate sanction.

2.17	Mr Woods, at the meeting on 10 May 2002, did not confirm whether he was prepared to accept her withdrawal of her resignation or indeed what was the precise status of the meeting and/or whether he was treating it as an appeal.  He merely stated, at the conclusion of the meeting, that he would consider what had been written in the letter and at the meeting and he undertook to write to the claimant.

2.18	By letter dated 14 May 2002, Mr Woods wrote to the claimant.  He disputed, inter alia, the meeting on 2 May 2002 had been improperly conducted and that the claimant had not been given an opportunity to respond to the allegations made against her.  He then concluded:

“You were offered an opportunity to resign, which you accepted, but have now withdrawn.  I have carefully considered all the circumstances of these matters, including the evidence gathered, our meetings, and the correspondence submitted by you in respect of your appeal against dismissal.  I have concluded that your conduct falls within the category of offences of gross misconduct referred to above.  Therefore, under the terms of your contract of employment, the company has no alternative but to dismiss you.”

2.19	Mr Woods accepted, in evidence, that his practice was always to dismiss an employee who had deliberately committed an offence of gross misconduct, in the absence of any mitigating circumstances.  He did not consider that she had offered any such circumstances to be taken into account at any time.  Her long service and her good work record, prior to these events, and the fact that this was her first offence of this nature were not matters he was prepared to take into account and nor was he prepared to consider any other sanction other than dismissal.

2.20	Mr Woods frankly acknowledged that he had been closely involved in all aspects of the investigation of the claimant’s offence and had conducted the meeting on 2 May 2002 and on 10 May 2002.  He indicated that offences involving gross misconduct, in view of their seriousness, required always to be dealt with by him and no other relevant manager and he was not willing, nor did he think it appropriate, to delegate such a task to any other manager any decision-making role in relation to such offences.  This seemed, in part, to be a further reflection of Mr Woods’ hands-on role, referred to above, in his capacity as Managing Director.  It would appear that for other offences, other than those of gross misconduct, these would normally be handled by Ms O Moore, the Personnel Manager, with an appeal to Mr Woods or other relevant senior manager, as appropriate.  Mr Woods expressed no reservation or concern to the Tribunal about the fact that if he had such a decision-making role in cases of gross misconduct, he would take any initial decision and also conduct any appeal, if appropriate, arising from that decision.  Equally, to the surprise of the Tribunal, Ms Moore, a qualified Personnel Manager, had no reservations about such a role by Mr Woods.  Mr Woods said to the Tribunal, in evidence, that his only regret, as to the actions taken by him, in relation to the claimant, were that he had not spent more time and energy in convincing the claimant to understand the merits of a resignation for her future.

2.21	The claimant has not obtained any further employment since 2 May 2002.  The claimant produced to the Tribunal a report from her General Practitioner, Dr Farnam, and edited GP notes and records, together with an edited report from Ms J McKenna, Cognitive Behavioural Psychotherapist.  However, it was indicated to the Tribunal that no medical adviser referred to above was to be called as a witness to prove the above records, reports and documents.  The Tribunal agreed to admit the said documents/reports/records in evidence; but made it clear that, the failure to call any such medical adviser, and the inability of the respondent to cross-examine any such witness in relation to what was set out in the said reports and documents, would make it very difficult for the Tribunal to determine what weight, if any, to place on their contents.  This difficulty was fully accepted by the claimant’s representative.

2.22	The Tribunal came to the conclusion, having regard to the said medical evidence produced, that the claimant has, from sometime since the termination of her employment, suffered from depression, anxiety and stress-related symptoms.

Significantly, in the Tribunal’s view, the GP notes and records do not provide relevant entries, at the relevant time, in relation to health problems and the loss of her job – albeit it is referred to in the said reports.  It is also clear that the claimant had a number of relevant events in her life, since the termination of her employment, which the medical advisers, as did the claimant, accept were also relevant to her said symptoms.  In the absence of oral evidence by the medical advisers, and the inability of the respondent to cross-examine any such advisers, the precise relationship between these events and/or the loss of her job and/or her symptoms remain less than clear to the Tribunal.  The Tribunal noted that in the months following May 2002 until in or about late October 2002 the claimant had made some efforts to obtain other employment, albeit unsuccessfully.  The Tribunal came to the conclusion, in light of the foregoing, and the unsatisfactory state of the medical evidence presented to the Tribunal by the claimant, that from on or about 4 November 2002 any financial loss was not attributable to the termination of her employment, but to other unrelated causes and for which the respondent cannot be found to be liable.

2.23	A male Catholic employee, “J”, was investigated in relation to an alleged clocking offence relating to an overpayment to him arising out of work done on general duties in the maintenance section of the company and for further work for intermittent driving duties.  The former work was subject to the clock card system, whereas the latter was not.  On investigation, it was found the employee was unaware of the necessity to clock out of his maintenance duties before performing the driving duties.  It was further found the employee was unaware that he had been paid twice for the driving work.  Since the overpayment had arisen due to a genuine mistake on the employee’s behalf, arising out a failure by the respondent to have a procedure/system to deal with the above situation, Mr Woods was satisfied no offence of a disciplinary nature had taken place and there was no need to take any further action, and in particular of a disciplinary nature.

2.24	Other Catholic employees, both male and female, have been dismissed by the respondent for various acts of gross misconduct arising during the course of the claimant’s employment.  One such male employee, “I”, was dismissed by the respondent for gross misconduct arising out of a clocking offence, whereby the employee had clocked in a relative who was not working.

2.25	Dessie Mone is a male Catholic employee and was a Director of the respondent from 1996 until in or around 2000.  He was involved in Sales, which required him to drive a company vehicle.  He drove such a vehicle at a time when his licence had expired.  When he discovered his licence had expired, he had to redo his driving test.  After informing Mr Woods what had occurred, he voluntarily stood down as Director and no disciplinary or other action was taken by the respondent.

3.1	In relation to the claimant’s claim that she was unlawfully discriminated against by the respondent on the grounds of her sex and/or the grounds of her religious belief, it is necessary for the claimant to show, inter alia, that she has been treated less favourably than persons of a different sex or religious belief in circumstances which are the same or not materially different.  The Tribunal is satisfied the circumstances relating to Mr Mone are not the same and are materially different and therefore do not give rise to a valid comparison.  In relation to the circumstances relating to the male Catholic employee “J”, the Tribunal is again not satisfied that the claimant has established a valid comparison.  Firstly, employee “J” was operating a formal clock card system, unlike the claimant, who was operating under the informal system of making entries in the Day Book.  Further, the claimant was fully aware of how she was to operate the system and the entries to be entered in the Day Book; whereas the respondent had not provided a procedure/system under the clock card system for dealing with the situation which arose in the case of employee “J” where he clocked out of his maintenance duties to perform his driving duties and therefore had not committed any disciplinary offence for which disciplinary action had to be taken.  There was no doubt in this case that the claimant had committed a disciplinary offence.  Even if the Tribunal is wrong, and employee “J” is a valid comparator, the Tribunal is not satisfied that, in failing to take any disciplinary action against employee “J”, the respondent has thereby unlawfully discriminated against the claimant on the grounds of her sex and/or religious belief.  Firstly, whilst employee “J” was a Catholic male, the Tribunal was satisfied that other employees, both male/female, Catholic/Protestant have been disciplined for a variety of different disciplinary offences by the respondent.  The mere fact that the claimant was female and Protestant, without more, was not sufficient, in the view of the Tribunal, to establish unlawful discrimination.  In particular, it is also noted by the Tribunal that employee “I”, a male Roman Catholic, had been dismissed for a clocking offence.

In these circumstances, the Tribunal was not satisfied that the claimant had shown facts that established she could have been unlawfully discriminated against by the respondent on the grounds of her sex and/or religious belief.  In any event, the Tribunal could readily accept, and did so, the explanation given by Mr Woods why he had not in the circumstances, as set out above, taken any action against employee “J”.

Thus, the claimant’s claim of unlawful discrimination on the grounds of sex and/or religious belief must be dismissed.

4.1	The claimant also makes a claim that she was unfairly dismissed.

Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 it is provided:-

(1)	In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a)	the reason (or if more than one, the principal reason) for the dismissal; and
(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2)	A reason falls within this paragraph if it:-
…

(b)	relates to the conduct of the employee.

4.2	The Tribunal is satisfied that the reason for the dismissal of the claimant by the respondent related to her conduct, namely the gross misconduct on her part in failing to accurately record her times in the Day Book.  Indeed, at no time did the claimant deny her said failure.

4.3	However, it is then necessary for the Tribunal to have regard to the provisions of Article 130(4) of the 1996 Order, which states:-

“(4).	Where the employer has fulfilled the requirements of paragraph (1) the determination of the question of 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.”

4.4	The Tribunal is satisfied that the respondent carried out a reasonable investigation.  It did not act on the findings of Mr Laffin, but only after receiving the report from Mr Orr, following the period of surveillance.  The Tribunal does not believe that the respondent was required to inform the claimant of its suspicions and give an appropriate warning, either to the claimant herself or the relevant section of the workforce, before embarking on the surveillance operation.  In so holding, the Tribunal accepts that another employer might have decided to do so.

However, the Tribunal is not satisfied that the respondent, and in particular Mr Woods, acted fairly once he had received the surveillance evidence and decided to hold a meeting with the claimant on 2 May 2002.  The Tribunal believes it was unfair to hold this meeting, which was intended to be a disciplinary meeting, with the claimant, without warning and without giving her any prior warning of what was to be discussed.  Whilst there is no doubt that the claimant accepted the examples of the discrepancies put to her and she was aware that there were further examples which she could examine, but declined to do so, the Tribunal is concerned that she was never given the proper opportunity to consider her position and her responses to matters put to her.  Further, in the opinion of the Tribunal, it was not appropriate for Mr Woods to refer to the list of examples of offences amounting to gross misconduct and asking the claimant to choose under which heading she wished to be disciplined.  The Tribunal is satisfied that, whenever the claimant admitted the said discrepancies, this confirmed Mr Woods’ view that she had breached the necessary trust between employer and employee and that, as far as he was concerned, it did not matter what she said as, in his view, her employment had to come to an end.  Consistent with this view, he told her if she did not resign she would be dismissed.  The claimant only had with her members of management, who had been closely involved in the investigation.  It must have been obvious to both Mr Woods and Mr McMahon how upset and shocked she was by what had occurred.  Yet, they expected her to make such a choice in such circumstances.  It was a choice that she should not have been required to make; what was said amounted to a constructive dismissal by the respondent.  This was compounded by the respondent dictating the terms of the letter of resignation for her.  The Tribunal believes the respondent’s actions stemmed from the fact that Mr Woods had a closed mind and believed, wrongly in the Tribunal’s view, there could be no other result other than dismissal and that he was doing her a favour in giving her the said choice of resignation.

4.5	The claimant sought to withdraw her resignation and to consider herself as dismissed and to bring an appeal against that dismissal.  At the meeting on 10 May 2002 Mr Woods did not make it clear whether he was accepting the withdrawal of her resignation, the status of the meeting and/or whether he was treating it as an appeal.  When he replied to the claimant, after the meeting on 10 May 2002, Mr Woods makes it clear he did not accept the meeting of 2 May 2002 had been improperly conducted, which, in the Tribunal’s view, as set out above, was clearly an incorrect view.  Despite the foregoing, it appears that Mr Woods treated what was said at the meeting on 10 May 2002 as an appeal against dismissal, having impliedly accepted the claimant’s withdrawal of her resignation and that she had been dismissed by the respondent on 2 May 2002.  However, such an appeal was, in the opinion of the Tribunal, an unfair appeal.  The appeal, if that is what it was, was conducted by the same person who had investigated the matter, conducted the initial meeting and was clearly not willing to and/or going to approach the appeal with an open mind.  Further, it was quite clear the result of any such appeal would be to confirm the original dismissal.  For Mr Woods, the matters expressly raised by the claimant, such as a long service, good working record or alternative sanctions were not relevant matters and were not required to be taken into account by him.  The appeal, given the events as set out above, was a crucial part of this process and where the matter could have been looked at afresh.  Unfortunately, this opportunity was not taken by the respondent and, in particular, Mr Woods who continued to take all relevant decisions on appeal as he had done throughout the process.

Whilst it is correct that the claimant had admitted to acts of gross misconduct arising out of the failure to record her times accurately in the Day Book, her dismissal for such conduct could fall within the band of reasonable responses open to an employer.  However, the Tribunal considers that the disciplinary/appeals process followed by the claimant was so flawed in the circumstances, as set out above, that the claimant’s dismissal does not come within the band of reasonable responses (see further Whitbread Plc (t/a Whitbread Medway Inns) -v- Hall (2001) IRLR 275 – where it was made clear that the band of reasonable responses applied to both substantive and procedural complaints).

The Tribunal is therefore satisfied the said dismissal was unfair.

5.	However, the Tribunal has to take into account that the claimant accepted that she failed to accurately record the entries in the Day Book.  This was a serious matter and amounted to gross misconduct on her part.  It was clear that by the result of her actions she made a monetary gain and there was a financial loss to her employer.  The Tribunal was satisfied she was fully aware of what she was doing and her actions were not mere acts of carelessness.  Further there were not isolated actions and showed a pattern of behaviour over a period.

In the circumstances, the Tribunal is satisfied that the claimant, by her said actions, has contributed to her said dismissal and that any award of compensation should be reduced by 50%.

6.	(1)	The claimant, as set out in the notice dated 6 March 2005 for the Social Security
Agency and the agreed schedule of loss the claimant, in the period 6 May 2002 to 4 November 2002, received the sum of £1,391.12 by way of Incapacity Benefit and was not in receipt of any other statutory benefits. 

(2)	The Tribunal therefore assesses compensation as follows:-

	A     Basic Award
			 	     				10 x 1 x £250 (subject to statutory cap)	£2,500.00
			Less 50% for contributory conduct	________
				£1,250.00

	B	Compensatory Award

			(i)     loss of statutory rights	£200.00

			(ii)	loss of earnings for 6 May 2002 to
				4 November 2002 @ £203.55 per week
				(26 x £203.55)	£5,292.30
				Less Incapacity Benefit received	£1,391.12
					£3,901.18

				Total compensatory award [(i) + (ii)]	£4,101.18
				Less 50% for contributory conduct	£2,050.59
				Total monetary award (A+B)	£3,300.59
					=======

This award is not subject to the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996.

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

___________________________________

Date and place of hearing:	7, 8 and 9 March 2005, Belfast

Date decision recorded in register and issued to parties: