THE INDUSTRIAL TRIBUNALS

CASE REF:	204/06

CLAIMANT:		Alan Megaw

RESPONDENT:		Refer 2 Us Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed.  The respondent is ordered to pay £14,200.00 to the claimant.

Constitution of Tribunal:
Chairman:		Mr T Browne
Members:		Mr G Hunter
			Mr W Irwin

Appearances:
The claimant was represented by Ms Casey, Barrister-at-Law, instructed by Cousins & Gilmore, Solicitors.
The respondent did not appear and was not represented.  The respondent’s solicitors had contacted the tribunal office to say that neither they nor the respondent would be attending because the respondent had gone into receivership.

The issue

1.	The tribunal was asked to determine:-

“Whether the claimant had been unfairly dismissed by his employer, the respondent.”

Findings of fact

2.	In reaching its conclusions, the tribunal had regard to the unchallenged sworn evidence of the claimant, the material placed before it and the claim and response forms.

3.	The tribunal found that the claimant started work for the respondent in March 2004 and was dismissed from his employment on 24 November 2005.

4.	The claimant worked as a General Practitioner Support Specialist for the respondent in its business as a prescription drug supplier to General Practitioners medical practices.  It was his job to run searches through surgery patient databases so that the doctors in the practice could agree the appropriate drugs offered by the respondent in the treatment of those patients.

5.	In running the searches, the claimant was required to abide by the protocols issued by the respondent relating to the search criteria and processes appropriate to identifying the correct drugs for different categories of patient.

6.	At the end of August 2005, the claimant was conducting computer searches on osteoporosis patients in a medical practice in Scotland.  He ran the searches in accordance with the protocols then in place and then left the information with the practice manager.

7.	The procedure then was that the doctors in the surgery would assess the information and decide any changes of medication.  Normally, this would be done within a few days of the searches being run, but in this instance the surgery was unable to accommodate the claimant until mid-November.

8.	In September 2005, the respondent issued a revised protocol for carrying out a search in relation to osteoporosis patients.  Training was provided to staff, including the claimant, and the tribunal accepted the claimant’s evidence that he had applied the new protocol in subsequent searches.

9.	The tribunal found that there was no indication in the September protocol or in the revised version issued in November that there was any instruction to staff that searches which had been conducted in accordance with the previous protocol but had not been agreed by the general practitioners should be re-done in accordance with the new procedure.

10.	The tribunal also accepted the claimant’s evidence that there was nothing in the training or otherwise communicated to staff that they should re-visit searches already conducted but not agreed with medical practices.

11.	In November the claimant agreed the transfer of 98 patients from the practice in question onto the new drug offered by the respondent.

12.	On Wednesday 23 November, the claimant was contacted by Cherry Cain, his line manager, who was in charge of the team which ran the osteoporosis search events.

13.	The tribunal found that the claimant was informed by her that she was conducting an investigation into a complaint from the health authority for the area in which the claimant had run his osteoporosis search.  The tribunal accepted the claimant’s evidence that he was supplied with very little information and that when he was asked on Friday 25 November to attend a meeting in Edinburgh on Monday 28 November, whilst he was aware it was in connection with the investigation, he was not informed or suspicious that it was in fact a disciplinary hearing.

14.	The tribunal had sight of an e-mail with which the claimant was supplied by way of discovery in preparation of this case for the tribunal hearing.  The tribunal found that this e-mail, sent by the relevant health trust to the respondent on 23 November, made it clear that the apparent breach of the protocol was the most recent in a series of such breaches.  The e-mail also stated that unless the respondent provided a reasonable explanation for this latest breach, then their business relationship would be terminated immediately.

15.	The tribunal accepted the claimant’s evidence that a number of his colleagues had been responsible for such breaches, but had merely received warnings.  The tribunal also accepted that the claimant during his employment by the respondent had never received any warning, verbal or written, arising from his work.

16.	The tribunal accepted the claimant’s evidence that only when the meeting of 28 November got underway was it made clear to him that it was in fact a disciplinary hearing.  The claimant was not accompanied by anyone, and the tribunal accepted his evidence that he had only been informed at that meeting of the substance of any complaint.

17.	The two persons conducting the disciplinary hearing, Cherry Cain and Derek Flory, head of Human Resources, went into more detail as to the nature of the claimant’s alleged transgression.  Whilst the claimant admitted in evidence to the tribunal that he had stated at the disciplinary hearing that he was under pressure to complete the agreement with the surgery, the tribunal accepted his emphatic denial that he had admitted to ‘cutting corners’ as later alleged by the respondent in providing reasons for his dismissal.

18.	The two persons conducting the disciplinary hearing rejected the claimant’s assertion that he had not been made aware of any need to re-run searches.  They stated that by failing to carry out the protocol he had brought the company into disrepute because of the potential danger to patients.  In their view, this was gross misconduct and they had no option but to dismiss him.

19.	The tribunal accepted the claimant’s evidence that on Tuesday 29 November, the claimant had received a telephone call from a colleague acting on Derek Flory’s instructions.

20.	The tribunal found from that evidence that the claimant had been told that the respondent felt bad about what had happened to the claimant and was offering to let him resign rather than dismiss him for gross misconduct.

21.	The tribunal also accepted that the claimant thought the matter over but decided to reject it because he felt that the way the respondent had behaved was not right.

22.	Some days later, the claimant received a letter from Derek Flory, confirming the dismissal and grounds as already provided at the hearing on 28 November.

23.	The claimant exercised his right of appeal, which was heard in London on 16 December and was conducted by the Chief Executive Officer of the respondent, as well as by its owner.  Having hearing the claimant’s account they did not take any time to consider the matter but rejected his appeal and confirmed the dismissal on the spot.  This decision was later communicated to the claimant by post.

24.	The tribunal found the claimant to be a clear and credible witness in his own right.  In addition, his version of events was not challenged, due to the non-attendance of the respondent or anyone on its behalf.

25.	The claimant advanced the case to the tribunal that he had never been informed that he ought to have re-run the searches conducted in August.  He felt that he had been singled out for discipline and dismissal merely to appease the health authority after their           e-mail threat on 23 November to withdraw business.  He felt that his dismissal as a sacrifice stood in particular contrast to the very low level of action taken against other colleagues who had failed to comply with the revised protocol.

26.	Whilst the respondent in reply to the claimant’s assertion in this regard denied that the person named by him committed similar transgressions, the tribunal found that the       e-mail of 23 November made it clear that some persons other than the claimant had not followed the protocol.  The tribunal found that the respondent made no attempt to deny this, nor in consequence did it provide details of their identities or action taken against them.

Law and conclusions

27.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 states that:-

“An employee has the right not to be unfairly dismissed by his employer.”

By virtue of Article 130 of the 1996 Order, in determining whether the dismissal is fair or unfair:-

		“It is for the employer to show:-

(a)	the reason (or, if more than one, the principal reason) for the dismissal;

(b)	that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Article 130(2) includes potentially fair reasons for dismissal, relating primarily to capacity, conduct and redundancy.

28.	The first requirement for the respondent therefore is that it must show the reason or principal reasons for the dismissal.

29.	Whilst the respondent raised a case of dismissal due to conduct in its response to the claim, the tribunal has concluded that this is insufficient to meet the statutory requirement to show the reason or principal reason.  In the view of the tribunal, the sworn evidence of the claimant not only refuted the assertions of the respondent but went unchallenged by virtue of the respondent’s failure to attend or to be represented at the tribunal hearing.

30.	In addition to those unchallenged assertions, the tribunal also had the benefit of sight of the e-mail of 23 November, which in the view of the tribunal gave credence to the claimant’s theory that his dismissal was primarily as a desperate attempt by the respondent to persuade a customer not to take their business elsewhere, rather than being a considered response to his conduct.

31.	That theory was given even greater credence by the undisputed and credible assertion by the claimant as to the offer to let him resign.  It was unclear to the tribunal whether that offer was prompted by a realisation that the disciplinary hearing might not have been conducted properly or because the respondent felt that the punishment had been too severe.  On balance, the tribunal concluded it was for the former reasons as, had it been for the latter, it seemed more likely to the tribunal that he would have been permitted to return to work.

32.	The tribunal also concluded that the claimant’s case as to the severity of his punishment being out of proportion to others in the same situation was supportive of the view that he had been used as a scapegoat and that the disciplinary procedure adopted had been used to mask the fact that his fate was already sealed by the threat in the e-mail of 23 November.

33.	Whilst the respondent denied that aspect, the tribunal concluded from the absence of any attempt by the respondent to identify and distinguish the other persons that it was more likely than not that they had received much more lenient treatment than the claimant.

34.	In those circumstances, the tribunal has concluded that the respondent has failed to show the reason or principal reason for dismissing the claimant.  The dismissal is therefore unfair.

The award

35.	The basic award is calculated at £280.00 because the claimant had one full year’s service at the time of his dismissal.

He is awarded £250.00 for loss of statutory rights.

The compensatory award is to be assessed as such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.

In the present case, that amount is assessed by the tribunal to be £1,367.00 x 7, being the claimant’s monthly salary multiplied by the number of months between being dismissed and the tribunal hearing, making a total of £9,569.00.

36.	The tribunal has considered whether the dismissal was to any extent caused or contributed to by any action of the claimant.  The tribunal concluded that in view of the absence of any challenge to his account at the tribunal, and in light of the tribunal’s findings as to the absence of a reason being shown by the respondent for his dismissal, it consequently is not possible to conclude from the evidence that the claimant to any extent caused or contributed to his dismissal.

Future loss

37.	The tribunal considered that additional future loss compensation was appropriate in this case.  The claimant satisfied the tribunal that he had made genuine efforts to mitigate his loss.  The tribunal concluded that he should receive additional compensation of three months’ pay, being a total of £1,367.00 x 3 =  £4,101.00, to allow for additional time for the claimant to obtain similar employment in quite a specialised area of work.

Recoupment

38.	This award is subject to the provision of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

(a)	The monetary award in this case is £14,200.00, consisting of the basic award of £280.00 plus £250.00 for loss of statutory rights, being £530.00 the compensatory award is £9,569.00 plus £4,101.00 for future loss, being a total of £13,670.00.

(b)	The prescribed element therefore is £9,569.00.

(c)	The period to which (b) relates is the date from dismissal, namely 24 November 2005 until 6 October 2006, being the date on which the decision of the tribunal is sent to the parties.

(d)	The excess of (a) over (b) therefore is:-

		£14,200.00
		£  9,569.00
		£  4,631.00

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

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

Chairman:

Date and place of hearing:	14 June 2006, Belfast

Date decision recorded in register and issued to parties: