Dunlop v J & J Haslett Ltd  (Unfair Dismissal)  (29 October 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	495/02

APPLICANT:		Anne Boyd Dunlop

RESPONDENT:		J & J Haslett Limited

DECISION

The unanimous decision of the Tribunal is that the applicant was unfairly dismissed by the respondent company.  The respondent company is ordered to pay the applicant the sum of £4,410.
Appearances:
The applicant was represented by Ms S Bradley, Barrister-at-Law, instructed by James H Rodgers & Company, Solicitors.
The respondent company was represented by Mr B McKee, Barrister-at-Law, instructed by C & J Black, Solicitors.

1.	The tribunal considers that reasons given in summary form would not adequately explain the grounds for its decision.  Consequently, these reasons are given in extended form.

2.	(i)	The tribunal heard evidence from Ms Sandra Mahood and Mr Michael Patterson, who were respectively Human Resources Manager and Group Buying Controller of the respondent company.  It heard evidence from Mrs Dunlop, and also had regard to documentary evidence submitted by the parties.	
			
	(ii)	The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.	
			
3.	(i)	The applicant was employed by the respondent company from 28 April 1980 until 31 January 2002, when she was dismissed.  The reason for her dismissal was because the respondent company believed that the applicant had breached the levels of trust and confidence, in relation to both her own manager and subordinate staff, which were necessary for her to carry out her duties as a supervisor.  The behaviour of the applicant giving rise to this breach of trust related to alleged invasions of the privacy of her colleagues, and her subsequent negative and unco-operative attitude during an investigation into these matters.  This was a reason related to her conduct, and was therefore potentially a fair reason for dismissal.	
			
	(ii)	The applicant at the time of her dismissal was aged 61 years.  She had worked for the respondent company for almost 22 years.  It was not in dispute that she had an unblemished record with them and had given them loyal service.	
			
	(iii)	She had started work as a clerk, and at the time of her dismissal was a Data Maintenance Supervisor in the Buying Administration Department at Derriaghy.  Her line manager was Joanne Patton, and Liz Esler was the Financial Analyst in the section.  It was these persons who made the complaints which ultimately led to the applicant’s dismissal.	
			
	(iv)	There were also three clerks in the section – Rosemary Moore, Christine Malcolm, and Gracey Bradford, all of whom had worked there for much shorter periods than the applicant.

The applicant denied she had any supervisory responsibility for them.  We find otherwise.  She had no responsibility for matters such as when they took their holidays, or discipline.  However, she allocated work to them, and was responsible for seeing that it was done.	
			
4.	(i)	On 28 January 2002, Ms Mahood was told by Mr Patterson that Joanne Patton and Liz Esler would be invoking the company’s grievance procedure.  Liz Esler complained that the applicant, Gracey Bradford, and Rosemary Moore had been going through e-mails on her computer and had also searched her personal belongings.  She stated that this was an invasion of her privacy, which was unacceptable to her.  Similar complaints were made by Joanne Patton.

Both asked that the matter be dealt with informally, but reserved the right to make a formal complaint leading to a formal investigation at a subsequent stage.	
			
	(ii)	Ms Mahood viewed the complaints as serious.  However, following discussion with Mr Patterson, and having regard to the expressed wishes of the complainants, the fact that a formal complaint would lead to suspension and result in a lengthy procedure, and for the sake of the persons concerned, she decided that the matter would initially be investigated on an informal basis.	
			
	(iii)	The informal procedure was explained to all concerned, including the applicant, and they agreed to it.  It was, however, made clear that full co-operation was expected, and that if anyone withheld information or acted dishonestly in the course of the informal investigation, the company would instigate a formal investigation, which could be followed by suspension or dismissal, if appropriate.  

We are satisfied that the applicant understood this procedure, and furthermore that she realised that if there was any switch from the informal to a formal procedure, with a finding of gross misconduct in the latter, dismissal was a possible outcome.	
			
5.	(i)	The informal procedure was set in motion.  Interviews were carried out, allegations were put to the parties (including the applicant), persons were given the opportunity to be accompanied by a friend or union representative, and to comment on or address allegations.  As a result of these interviews, further information was sought from Liz Esler and Joanne Patton, and following on that, second interviews were held with the applicant and the other 3 more junior members of staff.	
			
	(ii)	We are satisfied that although the procedure was categorised as informal at that stage, it was a fair one, and that Ms Mahood and Mr Patterson approached the task in hand conscientiously.	
			
	(iii)	However, they formed the view that Anne Dunlop had been hostile and negative during her second interview.  There were differences in the accounts of what had happened given by those interviewed.  They were also unhappy that people did not appear to be telling the truth.  They expected people to be ‘straight’ with them in view of the informal process which had been embarked upon.  They had also concluded that they were dealing with a very serious matter, and that there was evidence that the applicant, Rosemary Moore and Gracey Bradford had invaded Joanne Patton’s privacy by accessing her personal e-mails.  Because of the        unco-operative attitude of the applicant during the second interview, they asked her to think the matter over and gave her the opportunity to come back to them again.  They stressed to her the seriousness of the matter.  However, the applicant chose not to avail of the opportunity she had been given.	
			
6.	(i)	Mr Patterson discussed the matter with Ms Mahood, and the company’s Human Resources Director.  He thought over the matter for a couple of hours.  However, by that stage he had made up  his mind that the applicant should be dismissed.  He took into account her long service with the company, and her unblemished work record.  Against that, he considered that trust and confidence in the applicant had gone completely, and he could not see any way in which she could continue working for the company.  He did not consider a final written warning appropriate, and although the company was a large one with 600 employees (excluding 70 in management grades), he did not really give any consideration to a transfer to one of the company’s other business locations.  He did not, it has to be said, find it easy to dismiss the applicant.  He had known  her and worked with her over many years, and regarded her as a friend as well as a colleague.	
			
	(ii)	At this stage the respondents decided, because of the seriousness of the matter, to switch from an informal to a formal procedure.  Such a course had been contemplated at the outset.  However, none of the parties, including the applicant, were told that this was being done.  This is not disputed by the respondent company.	
			
	(iii)	The applicant was called to a meeting in the late afternoon of 30 January 2002, the same day as the second set of interviews and the day on which Mr Patterson had decided she had to be dismissed.  This meeting was minuted by Ms Mahood as a ‘Termination Meeting’.  It was such as far as the applicant was concerned.  The meeting was called to dismiss her, and she was dismissed.  She was told the reason for her dismissal (which was subsequently confirmed in writing) and was also informed of her right of appeal, a right she did not subsequently exercise.  She was accompanied by a witness at the meeting, at management’s suggestion, though the meeting had been arranged at very short notice, shortly before the applicant was about to leave work for the day.  The person present as a witness had in fact been waiting in the foyer, ready to go home, when called to the meeting.	
			
7.	(i)	The tribunal accepts that the applicant’s conduct was a breach of trust, and an invasion of privacy, made worse by the fact that she was in a supervisory position and had involved subordinate staff in her actions.  We are satisfied it is capable of being construed as gross misconduct.  It is clear from Denco  v  Joinson [1991] ICR 172 that most misconduct involving computer misuse (as here) will be capable of  being so construed.	
			
	(ii)	We are satisfied, notwithstanding the submission on behalf of the applicant to the contrary, that management had reasonable grounds upon which to conclude that the applicant had behaved as alleged.  It is not for the tribunal to substitute its view of the evidence for that of the employer.  While we accept that the evidence was in some respects weak, we are nonetheless satisfied that the employers reached a conclusion on the evidence which was reasonable.  There were part admissions by the applicant, supported by other evidence.  It is clear that Mr Patterson weighed up the evidence, treated some of it as suspect in view of the fact that it came from a ‘co-accused’ who had a motive to misrepresent the applicant’s role, and did not attach great significance to those parts of the allegations which related to looking into colleagues’ bags.

Additionally, during the second and final interview, the applicant essentially stonewalled and adopted an unco-operative attitude, and it was reasonable in the circumstances for the employer to treat this as some evidence of guilt.	
			
	(iii)	The tribunal accepts that the procedure adopted by the respondents was fair until it came to the final stage, the so-called ‘Termination Meeting’.  It was very fairly accepted throughout by counsel for the respondent that there was a potential difficulty for the company in this respect.  Indeed, the final stage procedure did not appear to comply with the company’s own disciplinary procedure which stated that ‘committing gross misconduct will lead to an interview with the manager during which the employee will be given the opportunity to state [her] case’.	
			
	(iv)	Here, as stated, the procedure switched from the informal to the formal.  The parties were not told of this.  The decision to dismiss the applicant had already been made prior to the Termination Meeting.  By this stage, Mr Patterson did not have an open mind.  It was not as if the decision to dismiss were a provisional one from which he could be dissuaded.  The applicant went into the meeting, not knowing that her job was on the line.  She did not have, and was not given, the opportunity to put forward mitigation on her own behalf, or to attempt to persuade management to adopt a more lenient course.  Even in an apparently clear case of misconduct, it seems to us that an employee may be able to put forward matters of mitigation which did not occur to the employer, or of which he was unaware.	
			
8.	(i)	We are therefore satisfied that the applicant was unfairly dismissed by reason of the defect in procedure which we have outlined.	
			
	(ii)	It now remains for us to assess compensation.  The parties helpfully indicated to us that the basic award was agreed at £7,200 (the maximum at the time of the applicant’s dismissal).  The compensatory award was agreed at £46,200, exclusive of the applicant’s claim for compensation for injury to feelings, which was to be dealt with by the tribunal.	
			
9.	(i)	It is clear to us that the employers applied their disciplinary procedures expeditiously, and that when an allegedly serious disciplinary matter arose, dealing with it was given priority.  The informal procedures in this case were carried out quickly, and if a fair procedure had been adopted at the termination stage we consider that the applicant’s employment would have been extended by one week at most.  The net weekly wage was £316.	
			
	(ii)	Had a fair procedure been followed, what is the probability or chance that the applicant would have kept her job?  The applicant had long and unblemished service with the respondent company.  In the view of the tribunal, having regard in particular to the industrial experience of its lay members, the possibility that the applicant, had she been allowed to make representations in mitigation, might have persuaded the employer to let her keep her job (for example, by a transfer to another location where she would not have to work with those who had complained) cannot be discounted.  We accept that the chance of her persuading her employers to keep her on was not strong, but we at the same time do not consider that it was so negligible that it can be ruled out altogether.

While an assessment of her chance in this regard is inevitably somewhat speculative, we find that there was a 20% chance that she would have kept her job.  The compensatory award will be reduced accordingly.	
			
	(iii)	It was also urged upon us on behalf of the applicant that dismissal was an unreasonable sanction, and outside the band of reasonableness.  We do think that the sanction of dismissal was harsh, bearing in mind the applicant’s long service and exemplary work record.  However, we reiterate what we stated at Paragraph 7(i) above, and consider that the decision to dismiss was nevertheless one where a reasonable employer could have made in the circumstances of this case.  At this juncture it is convenient to set out that we consider the disparity in treatment between the applicant, who was dismissed, and Gracey Bradford and Rosemary Moore, who were also implicated and who received a written warning and final written warning respectively, can be justified.  The applicant was their supervisor and had set a poor example to them.  They were not the instigators and, unlike the applicant, expressed remorse during the company’s investigation into these matters.	
			
10.	(i)	We are additionally satisfied that the applicant substantially caused or contributed to her dismissal by her own conduct.  It was clear from the evidence before the tribunal that contribution would be an issue, and the parties had the opportunity to address us on this point.	
			
	(ii)	We consider it appropriate to reduce both the basic and compensatory award by 75% on this account.	

11.	(i)	The applicant claimed compensation for injury to feelings.  Our attention was drawn to other decisions of Industrial Tribunals where substantial sums had been awarded under this heading.  The tribunal has had regard to Johnson  v  Uniys [2001] IRLR 279.  However, that decision did not expressly overrule the decision in Norton Tool Co Ltd  v  Tewson [1972] ICR 701, where it was held that ‘loss’ in unfair dismissal compensation meant only financial loss.  (See also:  Harvey, Industrial Relations and Employment Law, Volume I, Paragraphs 2629-2640.)	
			
	(ii)	However, on the facts of this case, it is not necessary for us to resolve this conflict.  The applicant has not satisfied us that she suffered any distress or injury to feelings over and above what one would normally expect in a case of dismissal.  We find that she exaggerated her evidence in this regard.  At the ‘Termination Meeting’ she remained composed, and made enquiries about her pension rights, and the making available of statements used in the disciplinary hearings.  

She also warned the respondents that they would hear more from her about the matter.  We also find it significant that the applicant, despite her distress as described to us, lodged an application to an Industrial Tribunal within 5 days of dismissal.  She did this through Solicitors in Portadown, though she herself lived in Ballymoney.	
			
12.	(i)	We assess compensation as follows:-

Basic Award

Agreed at £7,200

We now reduce this to reflect the applicant’s contribution to her dismissal, which we have assess at 75%

Basic Award is £7,200 x ¼   =                                                                           £1,800	
			
	(ii)	Compensatory Award

Agreed at £46,200	

		The applicant would have had one week’s continued employment at £316 per week nett had a fair disciplinary procedure been followed	

£316	
				
		The balance of the agreed award is therefore:-

£46,200 - £316 = £45,884

We assessed the applicant’s chance of retaining her job had a fair procedure been followed at 20%.  This reduces her compensatory award to £45,884 x 1/5  = £9,177

This amount is further reduced by 75% to reflect the applicant’s contribution to her dismissal:-

£9,177 x ¼ =	

£2,294	
		Total Compensation	£4,410	

	(iii)	We do not consider it appropriate to exercise our discretion to make any further deduction under Article 162A of the Employment Rights (Northern Ireland) Order 1996 (failure to pursue internal appeal).

The applicant did not receive any benefit to which the Employment Protection (Recoupment of Jobseekers and Income Support) Regulations (Northern Ireland) 1996 apply.

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

Chairman:

Date and place of hearing:	24 September 2002, 21 and 22 October 2002 and 29 October 2002, at Belfast

Date decision recorded in register and issued to parties: