THE INDUSTRIAL TRIBUNALS 

CASE REF:	1745/04

	

APPLICANT:	Susan McKeeman	

RESPONDENT:	Robin Mercer t/a Hillmount Nursery Centre			 

DECISION 

The unanimous decision of the tribunal is the respondent was in breach of the applicant’s contract of employment when it dismissed her on 27 February 2004.  By Article 3(c) of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, the applicant is thus entitled to £717.36 compensation for such breach of contract.

Appearances:
The applicant was represented by Mr P Rankin Solicitor of Murtagh Breen & Co., Solicitors. 
The respondent was represented by Ms K Morrison Solicitor of Tughans, Solicitors.

Extended Reasons

Pursuant to Rule 12(4)(d) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004, these reasons are given in extended form.

The Contentions of the Parties

1.	By her Originating Application, presented on 26 May 2004, the applicant claimed that the respondent had been in breach of contract and in breach of the Working Time Regulations.  Before us, the applicant withdrew her complaint of breach of the Working Time Regulations, without objection by the respondent.

2.	On her complaint of breach of contract, the applicant’s complaint is that in her period of employment from 15 July 2003 to 1 March 2004, other employees did not engage with her or incorporate her into the team, and that from the New Year 2004 onwards she felt ostracised.  Moreover, the applicant felt that the respondent sided with these other employees.  The applicant lodged a complaint about this pattern of alleged behaviour on 8 January 2004, despite the fact that she regarded herself as a dedicated employee.  In particular, on 16 February 2004, the respondent spoke to the applicant and stated that he did not want anyone to leave.  On 20 February 2004, the respondent gave the applicant a letter saying that he was giving her one week’s notice of termination of employment.  On Sunday 22 February 2004, the respondent gave the applicant permission to speak to other members of staff, although she felt she was unaware of the allegations or complaints that had been made against her.  On 24 February 2004, the respondent gave the applicant a letter which advised her that her employment would end on 28 February 2004.

3.	By its Notice of Appearance, presented on 6 August 2004, the respondent contended that the applicant had not been dismissed.  In essence, the Notice of Appearance sets out that the respondent spoke to the applicant on 8 January 2004 and stated that he was giving the applicant an opportunity to improve her working relationship with other workers.  Around this time, Irene Thompson handed in her resignation, stating that she was leaving because of the applicant.  At the beginning of February 2004, Mr Mercer received three letters from long term employees stating they had a difficult working relationship with the applicant.  On 16 February 2004, Mr Mercer explained to the applicant that if the workforce could come to an amicable agreement they could all move on.  When this improvement did not materialise, the respondent put the applicant on one week’s notice on 20 February 2005 that he intended to terminate her employment.  The respondent met the applicant on 22 February 2004 and confirmed that if she were able to come to a positive agreement with the other members of staff, then she could continue working for the respondent.  The respondent contended that this was not a withdrawal of the notice of termination of employment as provided in the letter of 20 February 2004.  The meeting with Jacqueline Reid was particularly unproductive, and caused Ms Reid some annoyance and upset.  The respondent formed the view that the working relationship between the applicant and members of staff was not improving, and by letter of 23 February 2004 confirmed that the previous one week’s notice of termination of employment stood.  The applicant worked until 26 February 2004, but did not work on 27 February 2004.  The applicant was paid her full wages to effective date of termination, together with all outstanding holiday pay.  The respondent denied any breach of contract.

4.	The central issue between the parties was the length of time it would have taken to conduct a proper and reasonable disciplinary procedure against the applicant.

The Tribunal Found the Following Facts

5.	The respondent is a family-run nursery plant business, employing 25-30 people.  The management structure is the respondent, his wife and his father, Trevor Mercer.  The applicant worked as a Nursery Assistant from 15 July 2003 until 27 February 2004, during which time she earned £217.00 gross and £179.34 nett per week.  The applicant received written particulars of employment (dated 19 August 2003), which at section 20 and Appendix 2 contains provision for disciplinary rules and procedure.  Section 18 of the written particulars provides the applicant with the contractual entitlement to one week’s notice where service is more than one month and less than two years.  Appendix 2 provides that “no disciplinary action shall be taken until there has been a full investigation into any alleged incident”.  Appendix 2 makes no particular provision as to the amount of time the procedure should take, but states that “in the event of a breach of company rules you will be interviewed by Mr Trevor and Mr Robin Mercer and given the opportunity to state your case”.  Any appeal must be made in writing within three working days.  The appeal hearing should take place within a further five working days, and the outcome of the appeal notified within a further three working days.  The respondent has had to invoke the disciplinary procedure twice before for minor incidents not involving the applicant.  On each such occasion, the process took about a day to complete.  Invoking the full procedure would involve:-

(a)	meeting with the applicant by way of investigation and giving her the letters of complaint; 

(b) 	taking the applicant’s response a few days later; 

(c)  	deciding on whether disciplinary action was warranted; 

(d) 	a disciplinary hearing involving Mr Trevor and Mr Robin Mercer, taking evidence from the applicant; 

(e)  	deciding on an implementing any disciplinary sanction;  and

(f)	      allowing time to hear any appeal (which process can take up to eleven working days,
pursuant to the written particulars of employment).

6.	The respondent spoke to the applicant on 8 January 2004 and stated that he was giving the applicant an opportunity to improve her working relationship with other workers.  Around this time, Irene Thompson handed in her resignation, stating that she was leaving because of the applicant.  The respondent regarded this as a serious situation for him, and feared that he may loose other staff.  At the beginning of February 2004, Mr Mercer received three letters from long term employees stating they had a difficult working relationship with the applicant.  One of these complainants was Jacqueline Reid.  Another was from Julie Getty, and the third was from Eleanor Dickson.  All three complainants work on a Tuesday.  As the respondent accepted in cross examination, when he received the letter from Jacqueline Reid he believed the applicant was in dereliction of her duties.  On 13 February 2004, Mr Mercer explained to the applicant that he had received letters of complaint about her demeanour whilst at work.  He did not show the letters to the applicant, or specify the allegations contained in them.  Mr Mercer did not warn the applicant that if her performance did not improve, she would risk loosing her job, or that Ms Thompson had left because of the applicant’s behaviour.  The respondent was confused as to whether the meeting with the applicant on 13 February 2004 was either:

(i)	an investigatory meeting;  or

(ii)	a disciplinary meeting.

7.	The respondent met the complainants over the weekend of 14-15 February 2004.  On 16 February 2004, the applicant and the respondent had a conversation, during which the respondent refused to let the applicant have access to the letters of complaint.  At this meeting, Mr Mercer stated that if the workforce could come to an amicable agreement they could all move on.  Such a series of meetings could have been arranged within a few days.  When this improvement did not materialise, the respondent put the applicant on one week’s notice on 20 February 2005 that he intended to terminate her employment.  This letter provided no information about any right to appeal the decision to dismiss.  The respondent met the applicant on 22 February 2004 and confirmed that if she were able to come to a positive agreement with the other members of staff, then she could continue working for the respondent.  On foot of this, the applicant met with Jacqueline Reid on 22 February 2004.  Despite the applicant’s impression of this meeting, it was particularly unproductive, and caused Ms Reid some annoyance and upset.  On 23 February 2004, Jacqueline Reid said to the respondent that she wanted to hand in her resignation.  As a result of this, the respondent decided that there was no point in having further meetings between the applicant and other complainants.  The respondent formed the view that the working relationship between the applicant and members of staff was not improving, and by letter of 23 February 2004 confirmed that the previous one week’s notice of termination of employment stood.  The applicant was not at work on 23 February 2004, and she received this letter on 24 February 2004.  The applicant worked on 26 February 2004, but did not work on 27 February 2004.  The applicant was paid her full wages to effective date of termination, 27 February 2004, together with all outstanding holiday pay.

  Applicable Law

8.	The tribunal determines that the law applicable to the applicant’s complaint is Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994  (“the 1994 Order”).

The Decision of the Tribunal

9.	The tribunal has considered the Originating Application, Notice of Appearance, all the evidence before it, and the submissions made by the parties.  The tribunal makes the following decision on foot of the Findings of Fact above, and by a unanimous Decision, the tribunal makes the following determination:

A.	The tribunal has had regard to the contents and recommendations of the Code of Practice in Disciplinary & Grievance Procedures, as published by the Labour Relations Agency, and in particular the provisions of Section 9 of the Code.

B.	We determine that the procedure followed by the respondent was more an attempt to gain a consensus as any recognisable investigatory and disciplinary procedure.  In breach of its own disciplinary rules and procedure, the applicant was never given the benefit of:

1.	a full investigation;

2.	an interview with Mr Trevor and Mr Robin Mercer;

3.	informed of the specifics of the charge/s against her and allowed to defend herself, or the fact that her job could be at risk; and

4.	was never advised of her right to appeal the decision to dismiss her.

We are satisfied that there was a wholesale departure from the best practice of investigatory and disciplinary procedures as laid out in the Code of Practice in Disciplinary & Grievance Procedures, and in the applicant’s written particulars of employment.

C.	In Gunton –v- London Borough of Richmond-upon-Thames [1980] 3 All ER 577, CA, the employee was employed under a contract that provided that the contract of employment was terminable on one month’s notice, and containing provision for the suspension and dismissal of officers for breaches of discipline.  This latter procedure involved a number of stages, including a hearing by an appeals committee which would normally take considerably longer than one month to implement.  The Council decided that Gunton should be dismissed, and issued him with notification of its decision and giving him a right to appeal.  The Council thus disregarded the preliminary steps to be followed before a disciplinary dismissal.  Gunton appealed.  The dismissal was confirmed on appeal by letter dated 13 January 1975.  The Court of Appeal held that the Council was required to invoke and carry out all the disciplinary steps of the appeal procedure that applied and therefore had wrongfully dismissed Gunton.  Moreover, the Court of Appeal held that the dismissal of the appeal on 13 January 1975 did not immediately terminate Gunton’s contract of employment;  he preserved the right not to be dismissed on disciplinary grounds until the prescribed disciplinary procedure had been carried out and to be compensated accordingly if they were not.  On this basis, Gunton was entitled to his salary for the period 14 January 1975 until the date when the proper disciplinary procedure, if carried out expeditiously, might reasonably have been concluded, plus one month’s notice.

D.	Gunton has been applied and followed in Boyo –v- London Borough of Lambeth [1995] IRLR 50, where it was by the Court of Appeal that Boyo was entitled to compensation from the date of acceptance of the repudiation by the employer; such compensation being –

(a)	contractual notice; and

(b)	a reasonable period for carrying out the appropriate disciplinary procedure.

E.	The tribunal determines that the respondent determined, properly, that consensus could not be reached on 20 February 2004.  From that date, had a proper investigation and disciplinary procedure been followed – as outlined in the written particulars and contained in the Labour Relations Agency Code of Practice – Mr Trevor Mercer would have been required to meet the complainants as part of a proper investigation, and then meet the applicant.  Had a disciplinary procedure then been followed, Mr Trevor and Mr Robin Mercer would then have been required to meet the applicant.  This process, in a company of thirty employees, could have been expeditiously and reasonably completed within one working week, since we found that the complainants all work on a Tuesday.  In addition, and given the time boundaries set out in the written particulars for the appeal process, we have allowed a further two working weeks for an expeditious appeal procedure to take its course.  Therefore, we have allowed a total of three working weeks for an expeditious and reasonable investigatory, disciplinary and appeal process from start to end.  Had the respondent arrived at the decision to terminate the applicant’s employment on foot of a procedurally fair and reasonable process, applying Boyo, and by section 18 of the written particulars, the applicant was then entitled to one week’s notice in February/March 2004.  The respondent did not follow such a reasonable and fair procedure here, and so breached the applicant’s contract of employment by a fundamental repudiation.  The applicant accepted this repudiation on 27 February 2004, from which date she no longer worked for the respondent.

F.	By Article 3(c) of the 1994 Order, applying the Boyo formula, the applicant is entitled to the following:-

(i)	One week’s pay in lieu of notice from 27 February 2004;  and

(ii)	Three week’s pay, being the time it would take to implement a fair and reasonable investigatory and disciplinary procedure until determination of any appeal.

G.	The applicant earned £179.34 per week nett.  She is thus entitled to a total of £179.34 x 4 =	£717.36.

H.	No further or other Order is made.

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

 

 

	
Chairman:

Date and place of hearing:`11 February 2005, Belfast.	

Date decision recorded in register and issued to parties: