THE INDUSTRIAL TRIBUNALS 

CASE REF:	482/04

CLAIMANT:		Gregory Prescott

RESPONDENT:	MSO Cleland Limited

			 
DECISION 

The unanimous decision of the tribunal is that the claimant had been fairly dismissed on grounds of conduct.  That decision was given orally on 28 June 2005 in accordance with Rule 30 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 with the reasons reserved to be given in writing at a later date.

Appearances:

The claimant was represented by Mr M. McEvoy, Barrister-at-Law, instructed by J P Hagan, Solicitors.

The respondent was represented by Ms A. Copley, Solicitor.

ISSUES

1.	It was common case that the claimant had been dismissed for misconduct on 4 December 2003.  The issue for the tribunal to determine was whether the dismissal was fair or unfair for the purposes of Article 130 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal had to determine firstly whether the dismissal was procedurally fair and if so, whether it was within the band of reasonable responses open to the respondent.

FACTS OF THE CASE

2.	The claimant was employed from 15 January 1987 to 4 December 2003 by the respondent, latterly as a supervisor printer.  He had a clear disciplinary record and the respondent accepts that he was an excellent employee.  

3.	On 28 November 2003, the claimant together with other employees attended a seminar held by Sun Chemicals who were a supplier of inks to the respondent’s printing business.  The seminar was held in the evening at the Wellington Park Hotel.  The claimant accepts that he consumed seven pints of beer in the course of the evening.

4.	The next morning (Saturday), Billy Sharpe, an employee of Sun Chemicals, called at the home of Dominic Walsh who is the managing director of the respondent.  He complained about the conduct of some of the respondent’s employees (including the claimant) at the seminar.  Mr Walsh asked Mr Blair Peden, print manager, and the claimant’s line manager to investigate the matter.

5.	A report was compiled by the Wellington Park Hotel staff and dated 28 November 2003.  That report alleged that three males i.e., the claimant, Stephen Gillis and D McNally were intoxicated and were offensive to staff.  They were asked to leave the hotel.  Mr Gillis and the claimant were alleged to have been abusive and threatening the door staff.  It was also alleged that the Police had to be called to remove Mr Gillis and the claimant on two occasions.  

6.	Statements were taken from Mr Kielty, Mr G Hutchinson and Mr K Weir who were all employees of the respondent and also from David Reid and Billy Sharpe who were employees of Sun Chemicals.  

7.	The claimant was first interviewed by Mr Peden on 1 December 2003 and he was advised orally that it was alleged that he had been rude during the seminar, that he had misbehaved at the bar, that he had kicked the door when asked to leave and that the Police were called.  He was suspended on full pay.  

8.	The disciplinary hearing was held the next day.  The claimant attended with a trade union representative.  None of the written statements were provided to the claimant or to the trade union representative.  

9.	The claimant was dismissed for gross misconduct on 4 December 2003 and informed of his right to appeal that decision to the managing director, Dominic Walsh.

10.	That appeal was heard by Mr Walsh on 8 December 2003.  Mr Walsh read out the security report from the hotel dated 28 November 2003 but no other statements were furnished or read out.  On 10 December 2003 Mr Walsh rejected the appeal.  

11.	Between the appeal hearing on 8 December 2003 and the decision on 10 December 2003 Mr Walsh made further enquiries of the PSNI.  There was video footage of the incident but the PSNI informed Mr Walsh that it could not be released without a Court Order.  Mr Walsh persuaded the Police Officer to talk him through what was happening on the video footage in the course of a telephone call.  This additional information was neither recorded nor made available to the claimant and no opportunity was afforded to him to make further comment.

12.	The tribunal finds as a fact that during the first interview by Mr Peden on 1 December 2003 the claimant was given sufficient detail of the disciplinary matters which he had to face to enable him to respond properly.  The four areas of concern i.e., his behaviour in the seminar, his behaviour at the bar, his behaviour at the door of the hotel and his involvement with the Police were all clearly identified.  Mr McEvoy when asked by the Chair was unable to indicate whether any significant matter had not been drawn to the claimant’s attention at that point.  The tribunal also notes that there is no indication during the course of the disciplinary interview or during the appeal process that the claimant was in any way unaware or uncertain of the disciplinary charges which he had to meet.

13.	The managing director of the respondent i.e., Dominic Walsh, stated in his cross-examination that he regarded the appeal hearing as a review and not a re-hearing.  The tribunal concludes that Mr Walsh did not fully understand the distinction.  Mr Walsh stated in his evidence, and this was unchallenged, that he had taken the file home to study over the previous week-end and that he had taken the claimant through each aspect of the disciplinary charges in detail in an interview lasting for approximately one hour.  He had also read out the security report from the hotel which covered in detail all the accusations against the claimant.  The tribunal therefore finds that this was in fact a complete re-hearing of the disciplinary interview since Mr Walsh did everything Mr Peden had done at first instance.  

14.	The claimant admitted that he had drunk seven pints of beer in the course of the evening and accepted in his disciplinary interview that there had been a heated discussion during the seminar which “might have got out of hand”.  He also accepted that as a supervisor he shouldn’t have acted in the manner in which he had acted.  He further accepted, after initially denying the point that he had been asked to leave the hotel by hotel staff.  He further admitted he “might have banged the doors”.  He accepted that he was restrained by the door staff and that the Police were called twice.  He was eventually taken by the Police with Stephen Gillis to Central Station.  Mr Kielty, Mr Hutchinson, Mr Weir and Mr David Reid had given evidence that the claimant had been loud and disruptive and insulting during the seminar.  Mr Hutchinson, Mr Kielty and the hotel security report indicated that the claimant had been banging the hotel doors.  Mr Sharpe stated that the claimant and Mr Gillis had been shouting at the Police.  The tribunal therefore concludes that there was ample evidence from which the respondent could reasonably have concluded that the claimant had been guilty of misconduct both during the seminar and afterwards.  

STATEMENT OF LAW

15.	The decision in British Home Stores Limited -v- Burchell [1978] IRLR 389 states that in determining whether a dismissal is unfair in these circumstances a tribunal has to decide whether the employer who dismisses on grounds of misconduct had entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That itself involves three elements.  First, there must be established by the employer the fact of that belief;  that the employer did believe it.  Second, there must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief.  Third, 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.

The Court of Appeal in the case of Sainsbury Supermarkets Limited -v- Hitt [2003] IRLR 23 stated that a tribunal in this situation cannot substitute its own judgment as to what amounts to reasonable investigation but must apply an objective standard i.e., the standard of the reasonable employer as to what amounts to a reasonable investigation.

The EAT in the case of Louies -v- Coventry Hood & Seating Limited [1990] IRLR 324 stated that “where the essence of the case against an employee is contained in written statements by witnesses, it is contrary to the rules of natural justice and  prima facie unfair for an employer to refuse to let the employee see those statements.  Thus where, in deciding to dismiss, an employer relies almost entirely on such written statements, it will be very rare for the procedures to be fair if the employee is not allowed to see the statements, or at least be told very clearly exactly what is in them”.

In the case of Lansing Linde Severnside Limited -v- Gibbs, EAT transcript 20 March 2003, the EAT held that the simple fact of non disclosure of witness statements or notes of interviews does not in itself make a dismissal procedurally unfair.  The tribunal in such circumstances, has to consider whether or not the non disclosure had any prejudicial affect on the ability of the employee to present their case.  In other words, the tribunal should in accordance with the Sainsbury Supermarkets Limited -v- Hitt case referred to above determine whether or not the procedure adopted by the employer was outside the band of reasonable responses available to that employer.

CONCLUSIONS

16.	The tribunal concludes that the dismissal was procedurally fair.  The claimant was given sufficient notification of the charges that he had to meet.  He was not in the tribunal’s view prejudiced or in any way materially impeded in his defence by the non disclosure of the witness statements.  He knew in some detail of the allegations and was able to respond again in detail during the disciplinary interview and the appeal.  He was sufficiently aware of the detail to apologise to Mr David Reid and to Mr Dominic Walsh for his behaviour.  The tribunal also concludes that the respondent had interviewed sufficient witnesses.  Mr Stephen Gillis was called by the claimant to give evidence at the tribunal.  However, his witness statement during his separate disciplinary interview with Mr Peden made it plain that he claimed at that stage not to be able to remember anything of significance.  The tribunal concludes that there was no onus on Mr Peden to seek a separate statement from Mr Gillis in relation to the investigation into the claimant.  The claimant also called Mr Jim Vennard to give evidence at the tribunal and it was argued that a separate witness statement should have been sought at the time from Mr Vennard.  Mr Vennard was only able to give evidence in relation to the conduct during the seminar and told the tribunal that Mr Gillis had been acting in a stupid and silly manner during the seminar and that the claimant was similar.  He stated that in his view this was not aggressive behaviour but confirmed that drink had been taken and that the claimant had knocked into a table.  He was unable to give any evidence as to the matters outside the seminar.  The tribunal concludes that there was no obligation on the employer to interview every person who had been present at the seminar (up to twenty people) and that a sufficient investigation had been completed.

17.	The tribunal then proceeded to determine whether or not the decision to summarily dismiss the claimant on 4 December 2003 was within the band of reasonable responses open to the respondent.  The tribunal concludes that it was.  The claimant was a supervisor who could reasonably be expected to have behaved himself properly and to have set an example to others.  The respondent, in the view of the tribunal, held the belief that the claimant had behaved badly during the seminar and outside.  The tribunal concludes that it had reasonable grounds for holding that belief and that a reasonable investigation had been conducted.  It had not been in dispute at any stage that the claimant was substantially under the influence of alcohol and that he had engaged in heated exchanges during the seminar which were described by Mr Vennard as embarrassing.  He accepted that he was asked to leave the hotel by hotel staff, that he had been engaged in an altercation with the door staff and that he had been restrained physically by the door staff.  It was not in dispute that the Police had been called on two occasions and that he had acted improperly.  A reasonable employer in those circumstances was in the view of the tribunal entitled to dismiss summarily on grounds of gross misconduct.

         

Chairman:

Date and place of hearing:	27-28 June 2005, Belfast.		

Date decision recorded in register and issued to parties: