FAIR EMPLOYMENT TRIBUNAL

CASE REF:	354/01FET
2530/01

CLAIMANT:	Derek Cotter

RESPONDENT:	Tyrone Irish Crystal

DECISION

The unanimous decision of the Tribunal is that:-

1.	The claimant was not unlawfully discriminated against by the respondent on the grounds of his religious belief and/or political opinion contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998; and

2.	The claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:		Mr N Drennan QC
Panel Members:	Mrs J McCormick
			Mr H Fox

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Aidan Quinn, Solicitor.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

Reasons:

1.0	The claimant made a claim, in an originating application presented to the Tribunal on 5 July 2001, in which he made claim of unlawful discrimination, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order) and also of unfair dismissal, contrary to the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order) in relation to his employment with the respondent from in or about November 1985 until the termination of his employment on or about 17 April 2001.

At the outset of the hearing, the claimant’s representative made clear to the Tribunal that his claim of unlawful discrimination contrary to the 1998 Order did not relate to his said dismissal.  It will be necessary to refer to this further later in this Decision.  The respondent denied, in a Notice of Appearance presented to the Tribunal on 13 August 2001, that the claimant was unfairly dismissed and/or had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion contrary to the 1998 Order.

2.0	The Tribunal made the following findings of fact, as set out in the following sub‑paragraphs, in relation to the claimant’s claim of unlawful discrimination under the 1998 Order.

2.1	In or about November 1995, the claimant, who was a Protestant and a former member of the British Army, was employed by the respondent as a sales representative.  He was engaged, in particular, by the then Managing Director of the respondent, Mr G Priestley, a Protestant, to carry out a specific sales role, which primarily related to the obtaining of sales of the respondent’s products from members of the security forces.  By the date of his renewed contract of employment, in or about October 2000, the claimant was employed in the position of PRI Sales Manager.  PRI stood for President of the Regimental Institute; and was the generic name given to the sales of the respondent’s products from members of the security forces, for which the claimant was responsible.  As part of his work, he was required to visit a variety of army bases, police stations, prisons and other similar security force installations, primarily in Northern Ireland, but also, on occasion, in other parts of Great Britain.  The Tribunal was satisfied it would have become common knowledge amongst the workforce, and not just the senior management, that the claimant’s work, in his said sales role, required him to work closely with those members of the security forces, including members of the British Army, the police and the prison service, from whom he obtained orders/sales of the respondent’s products.

2.2	During the course of the claimant’s employment, when the claimant was in the canteen, which would have been on an almost daily basis, having regard to the area where the respondent’s premises were situated near Dungannon, Co Tyrone, an army helicopter not infrequently flew over the premises; and there were invariably comments made to the claimant by other employees to the effect “there’s your mates”.  The claimant was unable to provide any dates of when such comments had been made.

Further, following the receipt by him of a ticket for speeding, a comment/jibe had been made to him along the following lines, namely “sure your mate Ronnie Flanagan will get you off”.  The precise date when this occurred was not known; but there was evidence, which the Tribunal accepted, that it occurred in or about the winter of 1999, when the claimant was involved in a large order for the RUC Historical Society.

At a sales meeting, attended by the claimant, in or about 1999, Frank Higgins, who was a keen Gaelic supporter, and the then Chairman and major shareholder of the respondent, at a meeting of the sales representatives, referred to the representatives as “all part of the same Gaelic team”, or some similar expression.  The claimant had no personal association with Gaelic sports.  Mr Higgins, who was called as a witness by the claimant, acknowledged that he probably made such a sporting reference as part of a team talk, given that he was a keen Gaelic supporter.  Indeed, the claimant accepted, in evidence, that when Mr Higgins made the remark he had been attempting to pull the sales representatives together as a team.

The claimant never made any complaint about any of the comments referred to above, prior to his dismissal.  As he stated in his witness statement, he put up with the comments and they did not cause him a great deal of upset.  The claimant, in the period immediately prior to his dismissal, had been obtaining advice from a solicitor – but at that time there was no reference at all by the claimant’s solicitor to these comments, nor as a ground of any complaint of unlawful discrimination.

2.3	In relation to the choice of a company car, the claimant, unlike the other sales staff, was restricted to an estate-type vehicle; whereas the other sales staff were allowed some choice within a standardised range and, in particular, in relation to colour.  This restriction of choice in relation to the claimant was because, as part of his work, he was required to frequently carry out deliveries to those persons from whom he had obtained orders rather than use the respondent’s normal carriers.  The deliveries, which the claimant had to carry out, were often heavy and bulky and required the additional space of such a vehicle.  Initially, the claimant had used his own car, but from in or about 1997/1998 he had been supplied by the company with an estate car.

The claimant did not have a specific office, nor a specific computer for his use during the period of his employment.  Other members of the sales staff, at a similar level to himself, had an office and computer in that office.  The Tribunal is satisfied that, when the claimant was initially employed by Mr Priestley there was a particular concern, shared by them both, that by selling to members of the security forces there was a risk both to the respondent, but also the claimant, from members of the Provisional IRA.  In that context, Mr Priestley decided, with the agreement of Mr Higgins, that the claimant would, from the outset, not have a fixed desk/office in the respondent’s premises.  From the outset of his employment, the claimant personally held considerable data relating to his work involving sales to members of the security forces, which one might have expected to be normally held at the respondent’s premises.  As the claimant himself acknowledged, in his evidence, there were fears, shared by himself and the senior management, at the time when the original arrangements were entered into, of the security implications of storing sensitive data on the respondent’s premises, given the nature of the claimant’s work with the members of the security forces.  It was, in the Tribunal’s view, in the above context that the absence of an individual office/computer for the claimant on the respondent’s premises commenced.  The claimant never complained about the situation or attempted to challenge it.  Indeed, the claimant, because of the nature of his work, spent a considerable proportion of his time ‘on the road’, rather than at the respondent’s premises.  It seems that, and in the absence of any complaint from the claimant, no attempt was made to alter the initial arrangement.  Indeed, there was no suggestion from the claimant that the absence of an office or a computer had prevented him satisfactorily carrying out his work.  However, the Tribunal is satisfied that, during the course of the claimant’s employment, considerable data relating to the claimant’s work began to be held by the respondent in relation to his work with the security forces; and that, whilst there may have been a reluctance, for security reasons, to store such material at the respondent’s premises in the earlier years of his employment, as the general security situation improved during the course of his employment this became less of a priority or necessity.  However, despite same, there was no alteration in the claimant’s working conditions; but it was also something about which he made no complaint.

2.4	In support of his claim of unlawful discrimination, as set out above, but not as an act of unlawful discrimination in itself (relying on the dicta in the case of Anya -v- Oxford University (2001) IRLR 377), the claimant relied on the fact that, in or about 2000, there was an increase by the respondent of approximately 10% in the price of the respondent’s goods for members of the security forces, whilst other customers’ prices were only increased by a figure of approximately 4.4%.  The claimant clearly had strong feelings about this matter, as he was going to have to persuade his customers, who, as set out above, were members of the security forces, to pay a percentage increase which did not apply to other non-security forces customers; and further believed that any increase should have been equal amongst all the customers.  The claimant felt so strongly about the matter that he wrote a letter of resignation, but was persuaded to stay, after a meeting with Mr Higgins and Mr Donnelly, another Director at that time.  It was not disputed that such an increase had been imposed.  But Mr Higgins confirmed that, at all times, there was a healthy tension between the various divisions of the sales department, of which the claimant’s work would have been one, as they each competed for business; but on occasion such tensions could boil over into a grievance or dispute.  Pricing of products in a particular division, which was clearly relevant to a salesman’s ability to sell his product to his customer, was such an issue where, on occasion, such tensions could boil over.  The claimant’s dispute about the increase and his subsequent letter of resignation, which was subsequently withdrawn, had to be seen, in the Tribunal’s view, in the context as set out above by Mr Higgins; and not as part of some discriminatory pricing structure.

2.5	The claimant further relied in support of his said claims of unlawful discrimination on the fact that no Director of the respondent had attended a visit to the factory by any of his army customers.  He relied, in particular, on a visit in 2001, when the newly appointed group sales and marketing manager, Peter Nunn, who had attended a visit at an army barracks in Belfast, was not present at a follow-up visit at the respondent’s premises.  The Tribunal noted that both Mr Nunn and the Chief Executive Officer of Tipperary Lifeware Group, which had taken over the respondent in or about mid‑2000, attended a number of similar visits to army installations, following their involvement with the company.  Mr Nunn had no recollection of such a return visit and the Tribunal was satisfied that, if he had been aware and available, he would have had no difficulty in attending any such function, as he was anxious at that time to generate and obtain business for the respondent.  The Tribunal also noted that previously Mr Higgins, the former Chairman and Gaelic supporter, had attended, with the claimant, a function at an army base in Armagh and, on another occasion, he had been accompanied by Mr Morgan, the then sales manager, to Sandhurst, the army officer training college in Great Britain.  The Tribunal was not satisfied, in light of the above evidence, there was any policy by senior management at any time to avoid contact with the claimant’s customers in the security forces.

3.1	In relation to the claimant’s claim of unlawful discrimination contrary to the 1998 Order, the first issue that had to be considered by the Tribunal was whether the said claims had been brought in time and that therefore the Tribunal had jurisdiction to consider same.

3.2	Under Article 46 of the 1998 Order, it is provided:-

“(1)	Paragraph (5) the Tribunal shall not consider a complaint under Article 38 unless it is brought before which is the earlier of:-

(a)	the end of the period of three months beginning with the day in which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b)	the end of the period of six months beginning with the day in which the act was done.

	…

 (5)	The Tribunal may nevertheless consider any such complaint, claim or application which is out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so.

 (6)	The purposes of this Article:-

(a)	when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b)	any act extending over a period shall be treated as done at the end of that period; and

(c)	…”

3.3	In relation to the claimant’s claim of unlawful discrimination, the claimant has relied on various acts, as set out above.  In relation to the comments that were invariably made in the canteen, when helicopters flew over the canteen, the claimant was unable to provide any dates when these comments occurred.  However, the Tribunal accepts that, given the claimant’s frequent presence in the canteen, and the regular nature of the helicopter flights, that such comments would have been made throughout the period of his employment, albeit not to the extent the claimant attempted to suggest in evidence.  Given their nature and the circumstances in which they occurred, the Tribunal was not surprised that the claimant was not able to recall specific dates and times of such comments.  The Tribunal noted, in contrast to the foregoing, that the claimant did not attempt to dispute that other comments relied on, as set out below, occurred in 1999.  The comments about the speeding ticket and the reference to Ronnie Flanagan occurred in or about the winter of 1999 and the reference to the Gaelic team was made by the then Chairman, Mr Higgins, at a meeting of the sales representatives in or about 1999.

3.4	In the case of Hendricks -v- Commissioner of Police for the Metropolis (2003) IRLR 96 CA, in determining whether there was an “act extending over a period, as distinct from a succession of unconnected or isolated specific acts, from which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs.  Concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period.  They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”.

In the Tribunal’s view, the sporting reference to the Gaelic team made in the comment by the former Chairman of the respondent in 1999 was of a very different nature to the comments made about the speeding ticket and the helicopter flights, and, in the opinion of the Tribunal, was an unconnected and isolated act for which time began to run when made and was therefore, prima facie, out of time.

However, the Tribunal considered that the comments made against the claimant in relation to the helicopter flights and the speeding ticket were of a similar nature.  Although the speeding ticket comments were linked to a specific event and occurred in a specific period of time, and the comments about the helicopter occurred throughout the period of employment, the Tribunal concluded that, given their similar nature, they were part of an ongoing situation/state of affairs and that thus such acts extended over the period of employment and were therefore in time.

In relation to the claimant’s claim relating to the failure to provide him with an office, a computer or to give him a choice of car, these were matters which took place throughout the period of his employment and, in the Tribunal’s view, were part of an ongoing situation/state of affairs for which the respondent was responsible and in such circumstances were acts extending over the period of the claimant’s employment and were therefore in time.

3.5	Although, as set out above, the claimant’s claim in respect of the comment made by Mr Higgins was out of time, it was then necessary for the Tribunal to determine whether the said claim should still be considered by the Tribunal on the grounds that it was just and equitable to do so.

The comment by Mr Higgins was made in 1999.  The claimant never made any complaint to Mr Higgins about his remark.  There was no suggestion, at any time, that he did not have a good working relationship with Mr Higgins.  Indeed, the Tribunal noted that when the claimant wished to complain about the pricing structure he wrote a letter of resignation and had a meeting with Mr Higgins and Mr Donnelly, after which he withdrew his resignation.  It does not appear that he took the opportunity to raise the issue of the comment made by Mr Higgins, even at that time.  Further, the claimant, when advised by his solicitor in the period leading up to his dismissal, did not refer in correspondence to any complaint of unlawful discrimination relating to this comment.

The comments made by Mr Higgins were not relevant to the claim of unfair dismissal made by the claimant; and which claim it was not disputed by the parties was in time.  The Tribunal did not consider the fact that the claimant had such an unrelated timeous unfair dismissal claim was a ground for extending time in relation to the claim of unlawful discrimination on the just and equitable grounds.  It was not, as occurred in the case of Berry -v- Ravenbourne National Health Service Trust (1993) ICR 871, where an amendment of a claim was allowed on just and equitable grounds, a situation where the facts in the discrimination claim were held to have very much overlapped and/or were very much the same as those to be determined in the unfair dismissal claim.

The claimant frankly admitted that his failure to complain, when the comment was made by Mr Higgins, was that he decided to put up with it.  That, in the Tribunal’s view, was his decision; and there was no suggestion in evidence by the claimant that he did not know that he could have taken, if he had wished, Tribunal proceedings.  Time limits are there to be observed and, as seen in the Decision of Robertson -v- Bexley Community Centre (2003) IRLR 434, the exercise of the discretion to extend time can be considered the exception rather than the rule.  Mr Higgins did not deny that he made such a comment, and thus the Tribunal did not consider prejudice was caused to the respondent by the presentation of the claim out of time.  However, the absence of prejudice does not make it just and equitable to ignore the time limit (see further Johnston -v- Chief Constable of the RUC (1998) NI 188).

In light of the foregoing, the Tribunal decided it would not be just and equitable to extend time in relation to the claimant’s claim relating to the comment by Mr Higgins about the Gaelic team.  The Tribunal therefore did not have jurisdiction to hear any claim relating to the said comment.

4.1	Although the originating application was presented in this matter on 5 July 2001, the provisions of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, which came into operation on 10 December 2003, applied to these proceedings by the nature of the transitional provisions contained in Regulation 2 of the said Regulations.  Regulation 24, in particular, amended Article 38 of the 1998 Order in relation to the burden of proof applicable to these proceedings – by the insertion of Article 38A, which states as follows:-

“Article 38A

Where on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could (Tribunal’s emphasis), apart from this Article, conclude in the absence of an adequate explanation of the respondent – 

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant, or 

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant.”

4.2	The Tribunal is not aware of any Decision of the Northern Ireland Court of Appeal, where the provisions of Article 38A have been considered.  Section 63A of the Sex Discrimination Act 1975 is in similar terms.  The leading authority on the interpretation of that section is the Decision of the Court of Appeal, in England and Wales, in the case of Igen -v- Wong (2005) IRLR 285, which approved, with amendment, the guidelines set out in the earlier Decision of Barton -v- Investec Henderson Crosthwaite Securities Ltd (2003) IRLR 332.  The Tribunal, in the absence of any other relevant authority, considered it appropriate to follow the said guidance as amended.

4.3	The Tribunal, following the said guidance, recognised it was necessary, in light of the facts as found by the Tribunal, as set out in the preceding paragraphs of this Decision, to firstly identify whether the claimant had established facts from which the Tribunal could conclude, in the absence of an adequate explanation, as defined, that the respondent had committed an act of unlawful discrimination, contrary to the provisions of the 1998 Order.  In so doing, the Tribunal was careful to note that, since the wording of Article 33A refers to could, it was not required, at this stage, to reach a determination that such facts would lead to a finding of unlawful discrimination.

4.4	For the claimant to be able to succeed in his claim of unlawful discrimination, contrary to the provisions of the 1998 Order, he has to be able to establish that the treatment complained of meant that he was subjected to “any other detriment”, under the provisions of Article 19(1)(b)(iii) of the 1998 Order.

In the case of Shamoon -v- Chief Constable of the RUC (2003) IRLR 285, the House of Lords held that detriment was an act which a reasonable employee might feel places them at a disadvantage with regard to the circumstances in which they work.

The Tribunal was satisfied that the treatment relied on by the claimant and for which the Tribunal has jurisdiction to determine, namely the comments in relation to the helicopter and the speeding ticket, the absence of an office and computer and the choice of a car, that such matters could constitute a detriment within the test set out in the Shamoon case.

4.5	The claimant, in relation to his said claim of unlawful discrimination, was not relying on any named comparator, but was rather relying on a hypothetical comparator.  Indeed, this was not surprising, since there was no other member of the sales staff carrying out the work which the claimant was required to do.  There was some dispute between the parties who was the appropriate hypothetical comparator.  The respondent suggested it should be a Catholic carrying out the same work.  The Tribunal did not consider that the fact of the person’s religion was relevant, as the claimant, throughout the proceedings, made it clear that he was not relying in this case on his religious belief.  The claimant rather claimed that the less favourable treatment relied on by him was on the grounds of his political opinion, namely his work with and association with the members of the security forces in Northern Ireland including members of the army, police and prison services and which constituted a political opinion within the meaning of the 1998 Order.  The claimant contended that the appropriate hypothetical comparator would be a member of the sales staff, who was not perceived as supporting or being associated with the members of the security forces.  In the Tribunal’s view, the hypothetical comparator had to be a member of the sales staff who was carrying out the same or similar work to the claimant, but who did not have the same political opinion as the claimant.

This, in the Tribunal’s view, raised a fundamental issue in relation to the claimant’s claim of unlawful discrimination; in particular whether the claimant could establish any such claim on the grounds of political opinion.  This required the Tribunal to consider and determine whether the political opinion relied on by the claimant in this matter comes within the terms of the 1998 Order.

4.6	“Political opinion” is not defined in the 1998 Order.  In the case of McKay -v- Northern Ireland Public Service Alliance (1994) NI 103, the Court of Appeal considered what was meant by political opinion.  In that case, the applicant had been denied a trade union appointment because of his left-wing political opinions.  The Court of Appeal held that there was no valid ground upon which to confine the term “political opinion” to the Unionist/Nationalist divide pertaining in Northern Ireland.  Hutton LCJ (as he then was) did not offer a comprehensive definition, but considered it was wide enough to cover political matters relating to conservatism and socialism.

Kelly LJ, in delivering a concurring judgement, held as follows:-

“There can be no difficulty as to the meaning of the word “opinion” and none as to the word “political”.  When they come together in the phrase “political opinion”, it means, in broad terms, and without attempting any exhaustive definition, the opinion relating to the policy of government and matters touching the government of the state.  The word “political” is defined in the Shorter Oxford Dictionary as: “of, belonging or pertaining to the state, its government and policy; public, civil; of or pertaining to the science or art of government”.  It seems to me clear that a person who holds an opinion on matters relating to any of the elements of this definition, holds a political opinion.”

The phrase was further considered by the Court of Appeal in the case of Gill -v- Northern Ireland Council for Ethnic Minorities (2001) NIJB 299, 311, when Carswell LCJ (as he then was), after concluding that the remarks of Kelly LJ in McKay -v- NIPSA and the dictionary definition quoted by him gave the most useful definition for the present purposes, stated as follows:-

“It seems to us that the type of political opinion envisaged by the Fair Employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland, but is not confined to that political entity.  The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology, and which may predispose the discriminator against him.  For this reason, we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy.”

4.7	On the facts, as found by the Tribunal, the claimant was required, as part of his work, to work with and associate with members of the security forces.  However, in the Tribunal’s view, doing such work and associating with members of the security forces, without more, does not mean that the claimant’s association with the security forces and/or his work with the security forces is akin to association with a political party, philosophy, ideology, which relates to the opposing ways of conducting the government of the state; and therefore capable of being a political opinion within the meaning of the 1998 Order.  Further, the mere fact that a person works with or in association with an organ of the state, such as the security forces, or has done in the past, does not mean that a person has a political opinion which is synonymous with that state.  Indeed, the contrary may be true.

4.8	The Tribunal therefore came to the conclusion that, having failed to establish that claims relating to the comments and/or the said working facilities were by reason of a political opinion within the meaning of the 1998 Order, that the Tribunal could make a finding of unlawful discrimination contrary to the 1998 Order, in the absence of an adequate explanation, as required under the Igen guidance.  Having so found, the Tribunal came to the conclusion that the burden of proof had not shifted, in the circumstances, to the respondent; and that the claim of unlawful discrimination must fail, and therefore be dismissed.

5.1	The Tribunal made the following findings of fact, as set out in the following sub‑paragraphs, in relation to the claimant’s claim under the 1996 Order.

5.2	Following the takeover of the respondent by the Tipperary Lifeware Group (TLG) in or about mid-2000, Peter Nunn was appointed from on or about 2 January 2001 as the Group Sales and Marketing Manager.  He had wide and varied responsibilities in relation to the sales divisions of both the respondent and also Tipperary Crystal, another company in TLG; but, in particular, he had line management responsibility for the claimant, as the PRI Sales Manager.

5.3	Following a period of familiarisation of his role across the Group, Mr Nunn began to examine how the PRI business was carried on, which was an area of work with which he was not well acquainted with, as he had never previously dealt with this type of work.  In particular, as part of this familiarisation process, he began to review the accounts relating to the PRI business.  He noted, with particular concern, that two accounts, which were part of this business, had ceased trading around the time that he had joined the company.  The accounts were known as “Berkshire” and “Chester”.  These accounts had, in the previous trading year, a combined turnover in the region of £90,000, which was a significant contribution to not only the PRI business, but also the overall sales of the respondent.  He was anxious to find out what had caused the above situation to arise, with the consequential loss of turnover to the respondent.  As part of his enquiries, he made internal enquiries from the members of the accounts department, including from Mr Williamson, the respondent’s internal accountant; but they were unable to provide him with contact details, addresses or relevant paperwork in respect of these two accounts; which, in his experience, he would normally have expected to find held by that department.  Mr Nunn was unaware how the PRI business operated and was unclear how such an account, such as Berkshire, where he had previously lived, could apparently be operating in Northern Ireland.  Following the above enquiries, Mr Nunn reported to the Chief Executive Officer, Mr Wall, his line manager, about his said concerns in relation to these accounts.  Then Mr Nunn, in consultation with Mr Wall, decided to have a meeting with the claimant to discuss the above matters of concern.  There was no documentary evidence of any formal involvement of the board of TLG; but the Tribunal was satisfied, on the evidence of Mr Nunn, that Mr Wall, in approving of the steps taken by Mr Nunn in relation to this matter, was acting at all material times with the authority of the board of TLG.

In light of the foregoing, and prior to any meeting with the claimant, Mr Nunn believed that he was faced with an accounting issue which had to be dealt with or something which had the potential to be a fraud.  This was clear from the notes he made in preparation for his meeting with the claimant, which included a series of questions he wished to ask the claimant.  Mr Nunn telephoned the claimant on 15 March 2001 and asked him to attend a meeting the following day to discuss “serious matters” regarding the PRI accounts.  He did not provide the claimant with any details at that stage.

5.4	The meeting took place on 16 March 2001.  Mr Williamson was in attendance and took notes at that meeting.  Mr Williamson’s attendance at that meeting was primarily to take notes.  Mr Williamson, who did not give evidence to the Tribunal, prepared rough notes during the course of the meeting, which he then put into a more formal form.  These were not verbatim notes.  There was some dispute between Mr Nunn and the claimant about what was precisely said at this meeting.  In this context, it clearly would have been helpful if Mr Williamson had been called to give evidence in relation to the contents of the said notes taken by him.  It was suggested that Mr Williamson was not well enough to attend the hearing; but the Tribunal was not given any relevant medical evidence in relation to such illness.  Indeed, there was never any suggestion the notes produced in evidence were not made by Mr Williamson; rather, the dispute was about the accuracy of the notes.  The Tribunal considered that the notes were not only made by Mr Williamson as set out above, but were an accurate reflection of the main points that were made at the meeting.  In particular, at the outset of the meeting, the Tribunal is satisfied that Mr Nunn indicated to the claimant that he had concerns about PRI sales and referred to particular concerns about PRI Berkshire account; and further that he put a number of specific questions to the claimant about the account.  These questions included who ran the account, and who placed the orders for the account and why it had closed.  The Tribunal is not satisfied that Mr Nunn used the word “investigation” in his introductory remarks, as this is not noted by Mr Williamson.  However, it would have been clear from the questions asked that Mr Nunn was certainly looking into these accounts and how they operated, and it was not a matter of routine enquiry.  The Tribunal is also satisfied that, whilst Mr Nunn may have intended at this meeting, as set out in his notes which he prepared prior to the meeting, merely to raise the matters with the claimant which were concerning him and to give the claimant an opportunity to respond at a later meeting; it did not work out in that way.  The claimant, without hesitation, as recorded by Mr Williamson, made some response at the meeting to the questions raised.  His replies were not detailed.  However, he pointed out, as recorded in the notes, that the Berkshire account had been run in a similar manner to all the other PRI accounts had been in the past, with the approval of Mr Higgins and the former owners of the respondent; and that no issue had been previously raised about the manner in which the accounts had been managed/operated by him.  The claimant also indicated that the person who ran the Berkshire account depended on a particular regiment, who were using that account facility at the relevant time and that orders were made by senior ranks; that he had discussed the closure of the account with the auditors, who had been satisfied at the time.  The Tribunal is satisfied that Mr Nunn then also began to raise similar questions in relation to the Chester account; but, in response, the claimant indicated that the Chester account was a new account for the regiment based in Omagh.  Mr Nunn, following these responses, informed the claimant that he wanted a further meeting with the claimant.  This was arranged for 9.30 am on Tuesday 20 March 2001.  He advised the claimant to think about the questions he had been asked in the meantime.  The claimant acknowledged, in evidence, that given his responsibility for the PRI accounts he could have no objection to answering such questions if asked by Mr Nunn; his contention was that they were not asked at the initial meeting.

The Tribunal does not accept, as set out above, that the claimant’s contention is correct, that such questions were not asked, given the notes of the meeting made by Mr Williamson; albeit they were limited and not verbatim.  Further, if the meeting was as limited as suggested by the claimant, it could not satisfactorily explain the claimant’s contacts with the security forces, as set out below, in the days following the initial meeting.  The Tribunal was satisfied that the claimant was fully aware of the nature of Mr Nunn’s enquiries by the questions which were asked by Mr Nunn.  Otherwise he would have no reason or basis to have made any such contacts.  The claimant, as appears from Mr Williamson’s notes, clearly believed that at the next meeting outsiders, such as auditors, would be present; but was assured, in response, by Mr Nunn that what he was carrying out was an internal investigation.  At some stage, and it is not apparent from the notes who raised the issue; an issue arose about representation of the claimant at this next meeting.  Indeed, in the Tribunal’s opinion, this further reflects the realisation, by both the claimant and Mr Nunn, of the seriousness attached to the meeting.  Whoever raised the issue, the Tribunal is satisfied that the claimant was told at this initial meeting that he had the opportunity to have a representative, such as a solicitor or anyone else he chose at the next meeting.  The Tribunal noted that, in giving that opportunity, this was to be contrasted with the respondent’s disciplinary procedures relating to misconduct, in which an employee who was the subject of such procedure had the right only to be accompanied by another member of staff of his/her choice.

5.5	By letter dated 16 March 2001, Mr Nunn wrote to the claimant confirming the date of the next meeting, as set out above, but also confirming the following matters:-

“The company is carrying out a full internal investigation into some of your accounts.  The company seeks your full cooperation during this investigation.  I have requested that you keep these matters confidential and do not discuss the situation with any third party, other than your solicitor, should you wish so to do.  It is the company’s intention to respect the confidentiality of this business during the investigation and request you to do likewise.”

Unfortunately, due to the intervening holiday weekend, this letter was not received by the claimant prior to the meeting on 20 March 2001; and he only received a copy of the letter at the outset of the meeting.  Apart from making it clear, as set out above, during the course of the meeting, that this was an internal investigation, the Tribunal was not satisfied from the notes, as prepared by Mr Williamson, that Mr Nunn, during the course of the meeting, had stressed the confidentiality of the matter; and certainly not in the terms set out in the above letter.

5.6	The claimant arrived at the meeting on 20 March 2001.  He did not seek, as he suggested for the first time at the hearing of this matter, a postponement.  Rather, he confirmed that he did not require a witness, or to be accompanied.  As appears from the notes made by Mr Nunn of the meeting, Mr Nunn was about to recap on what had taken place at the previous meeting, when the claimant interrupted him; the claimant told Mr Nunn that he had informed “his people”, which was clearly a reference to his contacts in the security services; and further that they were carrying out a full investigation, which included two people flying over from England on that day to manage the matter and, if necessary, they would involve the RUC.  He also pointed out that “this is the way these people work”.  He stated that he and his wife had been interviewed over the weekend, but he had nothing to hide.

In response, Mr Nunn stressed that this was an internal investigation and the necessity for him to investigate the matter with the claimant, as the person responsible for the said accounts.  During the course of the meeting the claimant referred to the fact that he had a meeting early that afternoon with some people flying in from England.  In his witness statement prepared for the purposes of these proceedings, the claimant confirmed that he had spoken to the security forces and that an appointment had been arranged that afternoon with the police and some military personnel, who had flown over to Northern Ireland specifically for the meeting.  The Tribunal is satisfied that Mr Nunn, when informed of the above contacts, pointed out that what he was conducting was an internal investigation; and he also expressed disappointment, if not annoyance, that the claimant had not only spoken to his contacts in the security forces, but had become involved in an investigation carried out by them.  The Tribunal was not surprised, given the above developments, that Mr Nunn then adjourned the meeting to consider these developments and requested that a further meeting would be held later that morning.  When the claimant did not arrive for the adjourned meeting, he was contacted by telephone and informed Mr Nunn that he could not attend, as “he was on the way to meet the people from England and would have to help them with their investigation”.  Mr Nunn asked him to attend a further meeting the next day, but the claimant indicated that he would be taking advice from his solicitor.

During the course of the meeting, the claimant referred to a discussion he had had with Mr Chris Morgan, the then sales manager for the corporate sales division, who had resigned in January 2001; but who had been required to work his period of notice.  He indicated that Mr Morgan had told him on 14 March 2001, there was going to be this investigation; and, in response, Mr Nunn informed the claimant that Mr Morgan would not have known there was going to be the meeting on 16 March 2001.

The Tribunal was satisfied that Mr Nunn and Mr Morgan had met on 14 March 2001, when Mr Nunn, to Mr Morgan’s surprise, had informed him he could leave at that time, without working out his full period of notice.  Mr Nunn, in explaining his decision, told Mr Morgan that, in the subsequent period, things would get “messy”.  But the Tribunal accepts that this was said in the context of the difficulties foreseen by Mr Nunn, in relation to the handover to Mr Morgan’s successor; and the reaction of customers who would have made the order initially with Mr Morgan, but by the time of actual sale would be dealing with his successor.  However, the Tribunal also believes that Mr Nunn made some reference to the fact that something was going on in relation to the claimant.  He gave no details; but Mr Morgan wrongly connected the two remarks.  Mr Morgan, in conversation with the claimant later that day, upon informing him that he was leaving, repeated the above conversation he had had with Mr Nunn.  Mr Morgan did not tell the claimant, as he suggested, that Mr Nunn had told him he was going to be sacked.  Indeed, Mr Morgan, a witness for the claimant, made it clear he said no such thing.

In the Tribunal’s view, it was not surprising that Mr Nunn may have made some reference to the claimant at that time, as he had already raised queries, without success, with the accounts department and Mr Williamson; and must have already had in contemplation the meeting with the claimant, which was arranged a day later.  No detail was given by Mr Morgan to the claimant, as he knew none.  Further, the Tribunal does not accept, in the above circumstances, that Mr Nunn’s conversation with Mr Morgan was some reference to some preordained decision by Mr Nunn to have the claimant dismissed.  It is further concluded that the claimant, for his own reasons, has attempted to put a spin/gloss on what he was told by Mr Morgan with his reference to sacking, which Mr Morgan has made clear was never said.

5.7	The claimant attended a further meeting with Mr Nunn on 21 March 2001, but made it clear from the outset that he was not going to say anything and that his solicitor would be sending Mr Nunn a letter.  He also referred to a letter the army had sent for Mr Nunn; but it had to be shown to his solicitor first.  Mr Nunn again stressed it was an internal investigation and confirmed his disappointment that the claimant had discussed this matter with other people.  Mr Nunn confirmed to the claimant that this was a company investigation, and as a company employee, he was requested to give his full cooperation during the investigation, and referred him to the terms of the letter dated 16 March 2001.  He pointed out that the investigation would be ongoing and requested his help.  The claimant still refused to make any comment, saying he had been instructed by his people not to comment, and that the company would receive a letter from his solicitor, and possibly a letter from the army, subject to what his solicitor said.  The meeting closed with Mr Nunn indicating that he would contact the claimant whenever he got the letters.

5.8	Whilst Mr Nunn agreed, at the conclusion of the meeting, that he would await the said correspondence, he in fact wrote to the claimant by letter dated 21 March 2001, referring to the previous meetings of 16 March, 20 March and 21 March, in relation to the ongoing investigation into a number of irregularities that had come to light and that the company sought and continued to seek his cooperation with the investigation.  He proposed a further meeting on 23 March, and pointed out that if the claimant continued to fail to cooperate, the investigation would continue and conclusions might be arrived at without the benefit of his input.  He also stressed that the company would treat all aspects of this investigation as confidential and that he was requested to do likewise and was required not to discuss this matter with any third party, other than his independent adviser.  In the final paragraph of the letter, Mr Nunn also stated “Should you fail to reasonably cooperate, you may put your employment with this company at risk”.  Although Mr Nunn had agreed to await the said correspondence as set out above, the Tribunal did not attach any significance to the fact that he went ahead and sent the above letter.  This letter merely confirmed the respondent’s position at that time, which the claimant was fully aware of.

5.9	In a faxed letter dated 22 March 2001, the claimant’s solicitor wrote to Mr Nunn pointing out, inter alia, that the claimant proposed to take 23 March 2001 as leave, and would not be in a position to attend on that day.  It also denied any allegation of impropriety in relation to the accounts or inference tending to impugn or compromise the claimant’s integrity or honesty.  Significantly, he also wrote that “However, with regard to your enquiries about the accounts already raised with my client, he at present cannot afford you details of the persons who are accountholders because of a potential breach of confidentiality, and until the legal representatives of those persons provide consent.  No doubt, your company is only too aware of the delicacy of some of these accounts and the need to afford an appropriate degree of security to them, and for that to be respected.  These accountholders have been long-term customers of your company and have obviously contributed to the ongoing viability of your sales”.

In evidence, the claimant accepted that in contrast to what was said in the letter and, indeed, as set out below, in subsequent correspondence from the claimant’s solicitor, he was never told by the persons in the security forces whom he contacted, and who were never identified by the claimant, not to give the names and addresses of the accountholders to Mr Nunn, as suggested.  Despite the earlier reference to a letter from the army, no such letter was ever sent to Mr Nunn, either directly or via the claimant’s solicitor.  There was never any contact made by letter or orally to Mr Nunn by any members of the security forces, or those who were said by the claimant to be investigating the matter.  Nor was there any contact by legal representatives on their behalf.  If there had been and, subject to what was said, the Tribunal has no doubt that Mr Nunn would have had to take into account any such contact in any further action that he took.

5.10	By letter dated 23 March 2001, Mr Nunn rearranged the meeting scheduled for 23 March, as the claimant had taken leave on that date, despite Mr Nunn’s refusal of such leave.  In the said letter, he rearranged the meeting for Tuesday 27 March 2001, and stated “As always, feel free to be accompanied by a friend, work colleague or independent advisor.  The company again requests your full cooperation while this investigation continues.  Failure to cooperate may put your employment with this company at risk.”

5.11	Mr Nunn also replied to the letter from the claimant’s solicitor by letter dated 23 March 2001.  In that letter, he pointed out to the claimant’s solicitor that no allegations whatsoever had been made against the claimant.  He further stated that, in the course of the investigation, a number of serious irregularities had come to light; and the company had sought the cooperation of the claimant in dealing with questions that had arisen, as a consequence.  He pointed out that he had been instructed by his board to carry out a most comprehensive investigation and that he intended to do this, hopefully with the cooperation of the claimant and any other person or persons inside or outside the company who could shed light on the matters discovered.  He made clear that he would be writing again to the claimant requesting him to attend a further meeting, and made it clear that he could be accompanied by a friend, colleague or representative.  He urged that the claimant should demonstrate his cooperation with the ongoing investigation by dealing openly with the questions raised, but further indicated that “should he fail to do so, disciplinary action, up to and including dismissal, may be taken against him”.

5.12	The meeting proposed for 27 March 2001 was rearranged for 2 April 2001.  By letter dated 30 March 2001, the claimant’s solicitor wrote again to Mr Nunn setting out in detail the claimant’s employment history with the respondent, and in particular the history relating of the PRI accounts.  He stated, inter alia, that management of these accounts was very much left to the claimant’s devices; but because of the nature of the PRI accounts the claimant was asked not to disclose, nor could he do so, the identities of the persons with whom he had direct contact, as an extraordinary amount of confidentiality and security attended the accounts because of their delicate nature.  He pointed out that the previous owners had very little involvement with the management and operation of these PRI accounts.

He stated further:-

“Therefore my client is bewildered at the suddenness of your company in demanding that he respond to your overtures concerning a major investigation by the company revealing a number of serious irregularities, which presumably attend my client’s PRI accounts or why else would you have sought to have a meeting with him.  Because of the delicacy of these accounts and my client’s determination not to compromise the security of any of the persons who do business with your company through the PRI accounts, he immediately sought guidance from the RUC and the army in relation to your correspondence.  My client is still awaiting confirmation from these bodies about whether or not he can provide any information about these accounts to you, if indeed that is what you require.

Before my client will consider attending any meeting with yourselves, I would be grateful to receive from you full and comprehensive details of the information you require from him and the exact nature of the major investigation referred to in your letter of 23 March 2001 to this writer, and the serious irregularities that you allege have come to light.”

5.13	Mr Nunn replied to the letter from the claimant’s solicitors by letter dated 2 April 2001.  He referred, inter alia, to the fact that he had no doubt that the claimant had comprehensively briefed his solicitor on the preliminary questions put to him by the company at the meeting on 16 March 2001.  He pointed out that under the claimant’s current contract of employment the claimant had clearly defined responsibilities and that, as his manager, he required those employees reporting to him that they discharged their duties in a proper manner.  He made it clear that the background history, as set out in the claimant’s solicitor’s letter was of no relevance and stated that he was giving the claimant one final opportunity to attend a meeting on 5 April 2001.  Again, he stressed that the claimant was advised to bring either a friend, colleague or independent adviser; but he pointed out that if he declined to openly and comprehensively respond to the questions already raised, which would again be raised, disciplinary action, up to and including dismissal, would be taken.

A letter was sent on 2 April 2001 to the claimant himself informing him of the meeting arranged for 5 April 2001; and which included the same reference to the ability to bring a friend, colleague or independent adviser, and once again warning him that if he declined to openly and comprehensively support the ongoing investigation, disciplinary action, up to and including dismissal, would be taken.

5.14	By letter dated 5 April 2001, Mr Nunn wrote to the claimant pointing out that he had required him to attend a further meeting on 5 April 2001 as part of the ongoing investigation into serious irregularities that had come to light in some of the trading accounts of Tyrone Crystal, and that he had not attended the meeting or made any contact in relation to it.  He also stated that, in light of that, the claimant was suspended from duty and should have no contact whatsoever with any customer or any entity that had a business relationship with Tyrone Crystal, and required him to attend a further meeting on 12 April 2001.  He again warned that failure to attend and openly and comprehensively cooperate with the investigation would result in the termination of his employment with the company.

By letter to Mr Nunn dated 4 April 2001, the claimant’s solicitor referred to the fact that reference had been made to serious irregularities that had come to light in some of the trading accounts of Tyrone Crystal and indicated, inter alia, that before the claimant would attend any meeting Mr Nunn required to put in writing to the claimant’s solicitor the questions he wished to pose to the claimant or exactly what information he required from him.  He made clear that any attempt by Mr Nunn to pre-empt such an appropriate arrangement by way of disciplinary action would be considered a deliberate act of discrimination and breach of his client’s employment rights and of course his client reserved his position with regard to that.  He also pointed out that his client would not be attending any meeting until he reflected upon his client’s fundamental employment rights, human rights and the rules of natural justice.

In a letter dated 5 April 2001 to the claimant’s solicitor, Mr Nunn informed him of the above suspension and the date of the further meeting that had been arranged, and that if the claimant again failed to attend and openly and comprehensively respond to the questions already raised with him, which would again be raised, his employment with the company would be terminated with immediate effect.  He also pointed out that in relation to the reference in previous correspondence to the irregularities in the trading accounts, that the respondent was making no judgement as to any association with these irregularities and the claimant.

5.15	By letter dated 11 April 2001, the claimant’s solicitor stated that the claimant believed that a decision had already been taken to dismiss him from his employment and referred to the fact that the company had already been in communication with PRI accountholders, stating that Mr Peter Nunn would be responsible for the PRI business from now on.  In this letter the claimant’s solicitor made clear that the claimant would not be attending any meeting on 12 April 2001; which he stated would appear to be have been rendered superfluous and academic because of the above matters.

	At this stage, the Tribunal is satisfied that the claimant had decided he would not attend the meeting, as requested, and was fully aware of the consequences of such action.  In a response of the same date, Mr Nunn denied any decision had already been made to dismiss the claimant.  He pointed out that the letter referred to was a letter sent to major accountholders, which included some PRI accounts, following Mr Nunn’s appointment as Group Sales Manager.  The Tribunal, having seen an example of such correspondence, is satisfied that this was the purpose of the letter; and again the claimant, for his own reasons, has attempted to misinterpret the purpose of the correspondence.  He also pointed out that, although the letter informing the claimant of his suspension had been marked “Private and Confidential”, that the claimant had clearly disclosed the contents of that letter to certain customers, who had contacted the company, despite the fact that the claimant had been told during the period of suspension not to have any contact with any such customers.

5.16	By letter dated 17 April 2001, Mr Nunn wrote to the claimant pointing out, inter alia, the failure of the claimant to attend previous meetings to discuss the serious irregularities identified in trading accounts of Tyrone Crystal which fell under his area of responsibility; and the warning in the letter to him on 5 April 2001 of a failure to attend and openly and comprehensively cooperate with the investigation would result in the termination of his employment with the respondent.  He referred to the suspension from duty at that time and that the claimant had failed to attend the meeting scheduled for 12 April 2001; but also the failure of attempts to contact the claimant thereafter.  He then advised the claimant of the decision of the respondent to terminate his employment with immediate effect, pointing out that he regarded the claimant’s failure to cooperate as gross misconduct, and a clear breach of the bond of trust that must exist between the company and an employee in a position of responsibility.  In the letter Mr Nunn did not state that the claimant had any right of appeal, which was provided for under the claimant’s disciplinary procedures.

6.1	The claimant was therefore dismissed on or about 17 April 2001, which dismissal he contended was unfair.

6.2	Under Article 130 of the 1996 Order, in determining whether the dismissal was fair or unfair, it is for the employer to show:-

“(1)	(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 or 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 – 

….

(d)	relates to the conduct of the employee.

6.3	The Tribunal was satisfied on the facts as found by it, set out in paragraph 5 and, in particular, the correspondence referred to therein that the reason for the said dismissal was the failure of the claimant to attend any of the said meetings, as requested by Mr Nunn, in connection with his internal investigation into the said PRI accounts and he was thereby failing to cooperate with the said investigation.  In the Tribunal’s view, such a failure related to the claimant’s conduct and was therefore a potentially fair reason for his dismissal, pursuant to Article 130(1) of the 1996 Order.  Even if the Tribunal is wrong, and the said reason is not related to the claimant’s conduct, the Tribunal would have been satisfied that the said reason was for some other substantial reason of a kind such as to justify the dismissal of an employee such as the claimant in his position of sales manager of the PRI business.  It has to be emphasised, at this point, that the reason for the dismissal was not due to any failure or otherwise of the claimant in connection with his work as a sales manager dealing with the PRI business and/or the manner in which he carried out that work.  Indeed, the Tribunal is satisfied that the claimant had, in connection with this work, been left very much to his own devices; and there had been little or no interference from the previous owners and senior management of his ‘modus operandi’.  It seems that the contact details, names and addresses for many accounts were non‑specific and, in reality, known only to the claimant.  It was possible for purchases to be made through these PRI accounts by persons who were not themselves in the security forces, but who had some degree of contact with persons who were.  Undoubtedly, having regard to the nature of the business, there may have been good reason why such practices and particular payment methods were adopted and continued; and which the claimant could explain.  As he stated, at the initial meeting, he was running the PRI accounts in the same way as he had always done, with the approval of the previous owners, and there had never been an issue raised previously about the manner in which the accounts had been managed and operated by him.  These matters would clearly have been a major feature of Mr Nunn’s investigation at his meeting with the claimant – but, as the claimant refused to attend any such meeting, these matters were never able to be investigated, and any explanation given by the claimant to be considered and taken into account.

6.4	However, it was 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) of 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.

6.5	In considering these issues, the Tribunal had particular regard to the guidelines set out in the case of British Home Stores Ltd -v- Burchell (1978) IRLR 379, where it was stated:-

“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair, the Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of the misconduct in question entertained a reasonable suspicion amounting to belief in the guilt of the employee of that misconduct at that time.  This involves three elements.  First, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief and the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

6.6	The Tribunal at all times was conscious that it must not substitute its own view, but rather consider the reasonableness of the actions of the respondent and whether, in particular, the actions of the employer fell within the band of reasonable responses which a reasonable employer might have adopted.  (See further Iceland Frozen Foods -v- Jones (1982) IRLR 439).

	In the case of Farrant -v- Woodroffe School (1998), which was a case where the employer was relying, as the ground for dismissal, on the employee’s conduct in refusing to obey an instruction, it was held by the Employment Appeal Tribunal that the lawfulness of that instruction, though relevant, was not decisive in considering the reasonableness of the dismissal.

6.7	There was no dispute that the claimant had failed, when requested to do so, to attend the meetings.  By not attending, he was clearly not cooperating with the investigation, as had been made clear to him in the correspondence sent to him and/or his solicitor by Mr Nunn.  The crucial issue, in essence, in this matter related to whether the respondent acted reasonably, in the circumstances, in dismissing the claimant when he refused the request by Mr Nunn to attend the said meetings.

6.8	The claimant did not dispute that Mr Nunn would have been entitled at the initial meeting on 16 March 2001 to ask him, as the sales manager responsible for the PRI business about the Berkshire and Chester accounts.  Indeed, the Tribunal is satisfied, not only were the questions raised, as set out in paragraph 5.4 herein, but that he answered without hesitation.  At the conclusion of the meeting, he was asked to think about the questions, in advance of a further follow-up meeting, which was arranged for after the holiday weekend on 20 March 2001.  He knew he could be accompanied at that meeting by his solicitor.  There was no suggestion at that time that he would not attend such a meeting.

6.9	The Tribunal is satisfied that, at the conclusion of the initial meeting, the claimant knew what was going to be discussed at the follow-up meeting, albeit he had not received the formal written confirmation of the meeting, due to the holiday weekend, until he arrived unaccompanied at the meeting on 20 March 2001.  Indeed, if he had not had that knowledge, there would have been no necessity for him to have made contact with the members of the security forces over that weekend; nor would he have had anything of relevance to discuss with those members of the security forces.

These were not casual contacts and for an investigation to have begun, as suggested by him, emphasised the nature of the discussions that must have taken place between the claimant and the members of the security forces; but also of his knowledge of what was due to be discussed at the next meeting.

6.10	Further, the claimant was fully aware, given that the previous owners and senior management had left the operation/management of the PRI accounts very much in his own hands, that the person in the respondent’s organisation who could provide the necessary answers to Mr Nunn about these accounts was the claimant himself; and why he was, in those circumstances, an essential participant in relation to any investigation by Mr Nunn.  Mr Nunn was the person who had been given, by the new owners, line management responsibility for these accounts.

6.11	The Tribunal could fully understand the reaction by Mr Nunn when the claimant, despite the initial meeting and the arrangements for the follow-up meeting, had over the holiday weekend had had various contacts with members of the security forces, as described in paragraph 5.6 herein.  These were about matters relating to the respondent’s business and involved, it was suggested, these members of the security forces carrying out their own investigations, which might involve the RUC.  With his references to “these people” and “people flying in from England for a meeting”, the claimant would have added to, not lessened, Mr Nunn’s concerns – particularly where he did not identify who “these people” were.  Mr Nunn was faced with a situation in which his sales manager was having contacts/meetings with unidentified persons, whom the claimant never properly identified; meetings which Mr Nunn neither knew about nor had authorised, and about which the claimant gave him no detail – but yet related to the respondent’s PRI business, for which Mr Nunn had management responsibility, and about which he had wanted to ask the claimant questions.  It was, in the Tribunal’s opinion, an unenviable position for Mr Nunn, as the relevant line manager, to find himself in.  It was understandable that Mr Nunn, in the circumstances, adjourned the meeting for a short while; but arranged it for later that morning.  At all times, it must be remembered, the claimant was employed by the respondent, not the security forces – albeit he may have had close contacts with them.  Again, rather than attend the later meeting on 20 March 2001, the claimant chose to go to a meeting to discuss the accounts in Lisburn – rather than attend a meeting with his employer to discuss those very accounts.  Rather than allaying the respondent’s concerns, in the Tribunal’s view, the involvement of these unidentified third parties made it even more necessary for the claimant to attend the meeting, as requested by Mr Nunn, to explain what was going on.

6.12	Despite the reference to a letter from the army, it was not at any time sent to Mr Nunn; nor indeed was there any contact made with Mr Nunn by any member of the security forces with whom the claimant had said he had been in contact with/had met over that holiday weekend or in the afternoon of 20 March 2001.  If this had occurred, or their precise involvement explained, matters might have taken, or have been required to take, a different course.  Certainly Mr Nunn would have had to take into account any such developments.

The Tribunal was very aware that at all times, as seen from the series of letters between Mr Nunn and the claimant and/or his solicitor following the meeting on 20 March 2001, Mr Nunn was slow to take the eventual sanction of dismissal.  He showed repeated willingness to rearrange meetings to accommodate the claimant, but without success.  He also made it clear, at all times, what would be the consequences for the claimant, namely dismissal, if he failed to attend any of the meetings, as requested.  Mr Nunn, in the view of the Tribunal, by his said actions, showed that he was not anxious to have to dismiss the claimant.  Another employer might have taken the action, which was taken by Mr Nunn in the letter dated 17 April 2001 at an earlier stage.  It further shows, in the Tribunal’s view, that the claimant was in error when he suggested that Mr Nunn for some time had been anxious to dismiss him, since Mr Nunn had found out he had spoken to a competitor of the respondent.  It also has to be noted that the claimant had been a very successful salesman for the respondent, and the respondent was unlikely, in the Tribunal’s view, to wish to lose such experience and expertise, without good reason.  It could not be said, in the view of the Tribunal, that Mr Nunn had not shown patience before sending the dismissal letter dated 17 April 2001.  Mr Nunn had also made it clear, from the outset, that the claimant could be attended at any meeting by his solicitor.

6.13	The claimant’s solicitor’s letter of 22 March 2001 denied any allegation of impropriety on the part of his client.  There had been no such allegation made; but in case there was any doubt, Mr Nunn confirmed, in his letter to the claimant’s solicitor on 23 March 2001, and in subsequent correspondence, that no such allegation was being made.

Despite what was stated by the claimant’s solicitor in the series of correspondence to Mr Nunn about the inability of the claimant to give the relevant names and addresses in connection with the said accounts, this, as the claimant acknowledged in evidence, was not in fact correct.  No such instruction had been given by any member of the security forces with whom he had been in contact.  Indeed, he could give no explanation to the Tribunal how his solicitor had come to suggest otherwise in the said correspondence.

6.14	It is clear from this series of correspondence between Mr Nunn and the claimant and/or his solicitor that Mr Nunn was requiring the claimant to attend a meeting; and equally the claimant was refusing to attend.  Further, it must be noted it was not a disciplinary meeting, but rather an investigatory meeting, as had been made clear in the correspondence; and no charges of a disciplinary nature had been made by the respondent in relation to the claimant’s work.  His ultimate dismissal related to his failure to attend the investigatory meeting, when requested to do so by Mr Nunn.  It was evident from the series of correspondence between the parties that an impasse was reached between them.  Mr Nunn required the claimant to attend the meeting to answer his questions in relation to the said accounts, accompanied, if the claimant wished, by his solicitor; whereas the claimant was adamant that he would not attend such a meeting, knowing full well the consequences of his refusal.  Subject to what is set out below, the Tribunal concluded, mindful of the test of reasonable responses, that Mr Nunn did not act unreasonably in requiring the claimant to attend the said meeting and answer questions about the said accounts.

6.15	In the said correspondence by the claimant’s solicitor, the solicitor indicated that, before his client would consider attending any such meeting, he required the details of what was to be asked.  Even if that had been done, his solicitor did not appear, in the Tribunal’s view, to be giving any assurance to Mr Nunn that the claimant would in fact attend.

6.16	Certainly, Mr Nunn could have sent to the claimant and/or his solicitor, before any such meeting, a copy of the list of questions, for example, which he had prepared before the initial meeting on 16 March 2001.  However, as seen above, the claimant was fully aware of what was to be discussed.  Indeed, following this meeting, he had been able to have discussions with other third parties, other than his line manager, following this initial meeting and had also been able to brief his solicitor about the accounts and the manner in which they operated.  Mr Nunn had also emphasised in his letter of 2 April 2001 that what was to be asked were the questions raised at the initial meeting – which the claimant was fully aware of, as set out above.  Further, the claimant’s solicitor was always to be allowed to attend any such meeting.

6.17	In considering this refusal by Mr Nunn to provide such information in advance in the above circumstances, the Tribunal was very mindful of the test of reasonable responses.  Certainly, the list of questions, such as that seen above, could have been given in advance of the meeting.  However, the Tribunal is not satisfied that the respondent acted outside the band of reasonable responses in refusing to give such a list in advance and continue to require the claimant to attend the meeting; in circumstances where the claimant was fully aware of what he was to be asked and had already discussed the matter, clearly in some detail, with persons other than his employer, and at any such meeting was going to be able to be accompanied by a solicitor.  Further, Mr Nunn had given the claimant repeated warnings of the consequences of his action; but he resolutely refused to attend such a meeting, knowing full well the consequences of not doing so.

6.18	It is correct that the letter of dismissal did not inform the claimant of his right of appeal, which was provided for under the respondent’s disciplinary procedures.  There was therefore a procedural failure; though the claimant’s representative accepted, in the course of submissions, it was not, in the circumstances of this case, a significant factor.

As Lord MacKay made clear in Polkey -v- AE Dayton Services Limited (1987) ICR 142, “… An Industrial Tribunal is not bound to hold that any procedural failure by the employer renders the dismissal unfair: it is one of the facts to be weighed by the Industrial Tribunal in deciding whether or not the dismissal was reasonable.  The weight to be attached to such procedural failure should depend upon the circumstances known to the employer at the time of dismissal, not on the consequences of such failure …”.

Given the contents of the series of correspondence which had taken place between the parties, and in the face of repeated warnings contained therein that the failure to attend the meeting as requested would result in dismissal, Mr Nunn was fully aware the claimant, by this time, was determined to maintain his position.  In such circumstances, the failure to inform the claimant in the letter of dismissal of his right of appeal was of little or no weight and the respondent did not thereby act unreasonably in failing to refer to the right of appeal in the letter of dismissal.

6.19	In the circumstances, the Tribunal therefore concluded that the respondent had acted reasonably in treating the said reason as a sufficient reason for the dismissal; and the dismissal was therefore fair.

7.1	At the conclusion of the hearing, the respondent’s representative sought to make an application for an order for costs against the claimant.  The relevant provisions, for the purpose of these proceedings, is contained in Rule 14 of the Industrial Tribunals Rules of Procedure 2004.

Rule 14(1) of the said Rules states:-

“Where, in the opinion of the tribunal, a party has in bringing the proceedings or a party or party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party’s actions in the proceedings have been misconceived, the tribunal shall consider making; and if it so decides, may make:-

(a)	an order containing an award against that party in respect of the costs incurred by another party;

(b)	….”

The Tribunal was conscious that any award under the said Rules is an exceptional course of action and the reason for it has to be specified clearly.  (See further the judgement of Lord Justice Pill in Lodwick -v- London Borough of Southwark (2004) IRLR 554 at paragraph 26 – in which he also approved the earlier judgement of Sir Hugh Griffiths in ET Marler Ltd -v- Robertson (1974) ICR 72, where he stated “Ordinary experience of life frequently teaches us that what was plain for all to see once the dust of battle has subsided was far from clear to the contestants when they took up arms”.

Secondly, the above Rule requires a Tribunal to embark on a two-stage process, namely, firstly, whether there has been, for example, a finding of unreasonable conduct and, secondly, but separately, to consider the exercise of its discretion in making an award of costs (see Criddle -v- Epcot Leisure Ltd, EAT unreported 24 June 2005).  The exercise of discretion by the Tribunal under the said Rule has also been held to have been unfettered (see further the case of Beynon -v- Scadden (1999) IRLR 700).

The Tribunal was also very aware that any award of costs is not to be in the nature of a penalty, but rather compensatory.

7.2	The respondent sought an order for costs on the grounds that the claim of unfair dismissal was misconceived, which under the interpretation section of the Rules is defined as “having no reasonable prospect of success”; and/or further, in pursuing the claim in such circumstances, the claimant had acted unreasonably.  The mere fact that the claim has been unsuccessful, for the reasons set out in the previous paragraphs of this Decision, was not, in the Tribunal’s view, a basis for making such an award of costs on the above grounds.  Indeed, as appears from the Tribunal’s Decision, there were serious issues to be determined by the Tribunal, in light of the evidence given, in relation to the dismissal of the claimant.  In these circumstances, the Tribunal was not satisfied that it could be said that the claim of unfair dismissal had no reasonable prospect of success and further to continue to prosecute same was unreasonable.  Thus, the Tribunal did not consider that such an award of costs was appropriate in relation to the claimant’s claim of unfair dismissal.

7.3	Further, the respondent also sought an order for costs on the grounds that the claim of unlawful discrimination under the 1998 Order was also misconceived, and further that in pursuing such claims the claimant acted unreasonably and was an abuse of the Tribunal process.

In relation to the claims of unlawful discrimination which the Tribunal was required to determine, the Tribunal was particularly mindful of the dicta as set out above in the case of Lodwick.  Whilst, as set out in the Tribunal’s Decision, there were clear difficulties facing the claimant in relation to those claims of unlawful discrimination, not least in relation to the definition of political opinion, it did not consider that by pursuing such claims to hearing he had continued to present an unmeritorious claim and, in circumstances, where an award of costs would be appropriate.

7.4	The Tribunal did however have concern about the withdrawal by the claimant, at the outset of the hearing, of his claim that his dismissal was also discriminatory contrary to the 1998 Order.  In considering whether an award of costs should be made against a claimant who withdraws his claim, the question is whether he has acted unreasonably in the conduct of the proceedings, not whether the withdrawal of a claim is itself unreasonable (McPherson -v- BNP Paribas (London Branch) (2004) EWCA CIV 569).  The Tribunal noted, in particular, the claimant’s admission, in evidence, that he had believed, at all material times, that his dismissal was related to the fact that he had been having talks with a competitor business and not for an unlawful discriminatory reason contrary to the 1998 Order.  Such a claim, in light of the foregoing, had to be misconceived and, in the Tribunal’s view, by continuing to prosecute such claim until the commencement of the hearing, the claimant had acted unreasonably.  However, the Tribunal noted that the claimant had withdrawn this aspect of the claim at the outset of the hearing.  Further, regardless of this claim of unlawful discrimination relating to the dismissal, there were the other claims of discrimination, which were, as seen above, properly the subject matter of these proceedings.  The issue of dismissal had had to be explored in the course of the pleadings by the respondent’s representatives; but so also had the other discriminatory claims.  Whilst there clearly was some further work involved on the part of the respondent, there was also, given the other claims, an element of overlap in this work between all of the discriminatory claims set out in the pleadings.  If the claimant had not withdrawn, at the outset of the proceedings, his claim that the dismissal was discriminatory, then the Tribunal’s view would have been different.  However, taking into account that he had withdrawn the claim, and that the other discriminatory claims were properly proceeding, the Tribunal concluded, not without some hesitation, that in the exercise of its discretion it should not make any award of costs against the claimant.

Chairman:

Date and place of hearing:	20 June 2005, 21 June 2005, 22 June 2005, 23 June 2005, 24 June 2005, 15 August 2005, 19 August 2005, Belfast

Date decision recorded in register and issued to parties: