THE INDUSTRIAL TRIBUNALS

CASE REF:	232/05

CLAIMANT:			Joseph Keenan

RESPONDENTS:		1.	Michael Reid
2.	Danny Brennan
3.	Rumpoles

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondents.  The tribunal Orders the respondents to pay compensation to the claimant of £5,545.00 in respect of unfair dismissal.  The claimant’s other claims are not made out and are dismissed by the tribunal.

Constitution of Tribunal:
Chairman:		Mr Leonard
Members:		Ms Gilmartin
			Ms Galloway

Appearances:
The claimant was represented by Mr R Hamilton, Solicitor, of Rory Hamilton & Company, Solicitors.
Mr D Reid and Mr D Brennan appeared for and represented the respondents.

Reasons

1.	By claim dated 24 January 2005 which was received by the Office of the Tribunals on that date, the claimant complained of unfair dismissal and outstanding wages/holiday pay.  The claimant named the respondents as “Michael Reid/D Brennan” and “Rumpoles”.  By response to this claim dated 2 March 2005 and presented to the Office of the Tribunals by J Blair, Employment Law Solicitor, which solicitor was then acting on behalf of the respondents, it was conceded that the claimant had been employed by the respondents and had been dismissed.  The reason for the dismissal of the claimant by the respondents was stated to be gross misconduct; the dismissal was contended to be, in all respects, fair and reasonable.  It was further contended that the claimed holiday pay and outstanding wages had been paid by that time by the respondents to the claimant.

The issues for determination

2.	The tribunal accepted that the respondents were correctly identified as “Michael Reid and Danny Brennan trading as Rumpoles”.  The issues for determination by the tribunal were as follows:-

(a)	Whether the claimant’s dismissal by the respondents was fair or unfair.

(b)	The claimant’s claim for unpaid wages and holiday pay.

(c)	If satisfactorily made out, the matter of appropriate compensation, taking account of all appropriate considerations.

3.	The tribunal received into evidence without objection a bundle of documents from the claimant’s representative, and the same from the respondents and certain additional documents.  The tribunal heard the oral evidence of both Mr Reid and Mr Brennan, the respondents, and of Mr Keenan, the claimant.  

4.	In consequence of the oral and documentary evidence adduced before the tribunal, the tribunal made the following findings of fact, material to the determination of the issues:-

(a)	“Rumpoles” is a long-established licensed premises situated in central Belfast which has undergone a number of changes of ownership over the years.  The claimant was first employed in that establishment in 1981.  At that time he was aged 18 years.  There was no evidence of anything of note regarding the early years of this employment up to the time when Rumpoles was acquired by the first and second-named respondents, Mr Reid and Mr Brennan.  The respondents took over Rumpoles as business partners in or about August 2003 from the previous owners and continued to trade under the same name.  The claimant’s employment was transferred to these new proprietors.  There was no evidence that the claimant’s contract of employment with the previous owners was governed by any written statement of terms and conditions of employment.

(b)	The claimant continued to work under this new ownership very much as before.  The respondents however endeavoured to have the claimant sign a written statement of terms and conditions of employment but, it would appear, without success.  The claimant for some reason did not accept or agree certain of the terms contained within that written document.  A copy of that statement was available to the tribunal.  That document does contain a disciplinary code and sets out procedures for dealing with disciplinary issues, including a right of appeal against disciplinary sanctions.  Notwithstanding that there might have been matters objectionable to the claimant in that document, the tribunal does accept that the disciplinary code or procedure contained therein was, de facto, agreed in content and form between the claimant and the respondents.  That procedure became applicable to further events and circumstances which were to transpire at the specific times which concern this tribunal.  

(c)	The claimant’s employment by the respondents seems to have been largely unremarkable.  There was however a particular incident that probably occurred some time in November 2003.  Whatever may have been the facts (as the facts were very much in contention in the course of the tribunal hearing) what is certain is that the respondents at the time took no disciplinary proceedings or action whatsoever, in any recognisable or formal sense, against the claimant at that time.  There was nothing invoked by the respondents which had attaching to it any of the characteristics of a disciplinary procedure.  

(d)	Nothing of note thereafter occurred between November 2003 and November 2004.  However, on 3 November 2004 the claimant attended work and spoke with the Rumpoles bar manager, Mr Gary Dunne.  The tribunal had no reason to doubt the claimant’s concession, made in the course of the hearing, that he had consumed a certain amount of alcohol the evening before that day and that he had not slept well the night before.  The claimant also contended that he was at the time suffering from stress.  Mr Dunne, for his part, observed the claimant to be intoxicated.  He concluded that the claimant had reported for work in an intoxicated condition.  He requested that the claimant leave the bar premises and sober himself up.  

(e)	The claimant agreed to leave.  Whether the claimant was thereafter absent only for a relatively brief period of time, perhaps up to ¾ of an hour (as the claimant contended), or for a much longer period, perhaps 2 – 2½ hours (as the respondents contended), the claimant did certainly, again by his own concession at hearing, consume further alcohol during his period of absence.  He was observed by Mr Dunne to have returned to the bar premises that day in a much more intoxicated condition than previously.  Mr Dunne then requested the claimant immediately to leave the premises and to go home.  

(f)	When the matter was reported to the respondents by Mr Dunne, it was decided by the respondents to invoke disciplinary proceedings.  Mr Reid wrote an undated letter to the claimant, which letter was received by the claimant, inviting the claimant to attend a disciplinary interview on 12 November 2004.  Attached to that letter was a typewritten statement of Mr Dunne indicating the events as they had been observed by Mr Dunne on 3 November 2004.  The letter referred to the respondents’ disciplinary policy which was stated to have been issued to the claimant on 9 June 2004.  The letter mentioned that the claimant presenting himself for duty whilst under the influence of alcohol fell within the realm of gross misconduct and that a possible outcome of the disciplinary interview might be the summary dismissal of the claimant.  The claimant was invited to be accompanied to the disciplinary interview by a work colleague or a trade union representative.  

(g)	The disciplinary hearing duly proceeded on 12 November 2004, with the claimant choosing to be unaccompanied.  The hearing was held before Mr Reid.  At the hearing the claimant presented to Mr Reid a medical certificate from the claimant’s doctor covering the period from 11 to 25 November 2004 (which certificate was regrettably not available to the tribunal) which certificate apparently stated that the claimant was suffering from ‘stress’.  The claimant had earlier filed a self-certificate with the respondents stating that he was suffering from ‘depression’, that certificate being dated by the claimant 7 November 2004.  There were no medical certificates contemporaneous with or prior to the date of the incident on 3 November 2004.  

(h)	Upon the conclusion of the disciplinary hearing, Mr Reid wrote a letter to the claimant informing him of the outcome.  Mr Reid stated that at the hearing the claimant had agreed with the content of Mr Dunne’s statement and had admitted that his actions on 3 November 2004 were, as it was put, ‘out of order’.  The medical certificate presented at the hearing was referred to.  However, the letter commented that Mr Reid felt that a satisfactory explanation had not been provided for the claimant’s behaviour and that any medical certification had followed the event.  The claimant’s conduct was deemed to be gross misconduct.  The decision was confirmed by Mr Reid that the claimant was to be summarily dismissed with immediate effect. 

(i)	However, as a medical fitness issue had been raised by the claimant, in the course of confirming an entitlement to appeal in Mr Reid’s letter, the claimant was invited on behalf of the respondents to present any medical evidence which he wished to be taken into account at the appeal before Mr Brennan.  Specifically, a medical consent form was attached to Mr Reid’s letter in order that, once given to the respondents, the respondents might be enabled to contact the claimant’s GP.  The claimant did not return that consent form to the respondents.  

(j)	The claimant wrote requesting an appeal.  The appeal hearing took place on 1 December 2004 before Mr Brennan.  Again the claimant chose not to be accompanied.  After the conclusion of the appeal hearing, by letter sent by him to the claimant dated 9 December 2004, Mr Brennan, in some detail, set forth the outcome of the appeal hearing.  Mr Brennan’s letter recited the arguments advanced by the claimant on appeal.  Looking, in some detail, at some of the material issues which were taken on board by Mr Brennan in the course of the appeal, the following extracts from the letter of 9 November 2004 are of note:-

				“1.	Disagreement with Gary’s version of events

	Furthermore a number of staff members have made comment on the fact that you were extremely drunk when you attended for work on 3 November 2004.  These third party statements support Gary’s version of events and due to this I reject your assertion that Gary has presented an exaggerated version of events.  

				4.	Harsh decision

	During the course of your appeal hearing you argued that if I were to uphold Mr Reid’s decision to dismiss you this would be an extremely harsh decision to take due to your length of service with Rumpoles.  This ignores the fact that on a previous occasion when you behaved in a similar manner you were at that time given the benefit of the doubt and were not dismissed.  However it was made clear to you on that previous occasion that if you behaved in a similar fashion in the future it would result in the termination of your contract of employment….. “

(k)	From these extracts it would appear that Mr Brennan, in determining the outcome of the appeal, took account of specific factors which do not appear to have been expressly referred to in the earlier disciplinary hearing.  His references in the letter are to ‘third party statements’ which are stated to have supported Mr Dunne’s version of events.  Mr Brennan refers to comments by a number of staff members that the claimant was ‘extremely drunk’.  Furthermore he asserts that on “…a previous occasion when you behaved in a similar manner you were… given the benefit of the doubt and were not dismissed.” (presumably that being an allusion to the November 2003 incident).

(l)	The employment was terminated with effect from 20 November 2004.  Since the dismissal, the tribunal noted that the claimant had secured no alternative employment.  Indeed he had been in receipt of incapacity benefit from the time of the dismissal; he continued to be in continuous receipt of that benefit up to the final tribunal hearing date.  The claimant did recount to the tribunal in his oral evidence, without any corroboration whether by way of documentation or by any other means, a number of claimed endeavours to gain employment or perhaps to take a new direction in terms of his future career but the evidential weight the tribunal was able to attach to that was rather light.

(m)	At the date of dismissal the claimant’s gross wage per week in this employment was £284.00.  He was aged 41 years, and he had been employed continuously for 23 years.  The tribunal did not need to determine any further findings of fact in order to reach the decision which is set out below.

The applicable law

5.	The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides at Article 126 that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer to show the reason (or, if more than one, the principal reason) for a dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal.  The specified reasons set out in Article 130 include conduct. Article 130(4) of the 1996 Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.  In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited -v- Jones [1982] IRLR 439 which includes the following:-

(i)	An industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair.

(ii)	In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another.

(iii)	The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

6.	If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the 1996 Order, and a compensatory award under Article 157 of the 1996 Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. 

The tribunal’s decision

7.	In this case the claimant was employed by the respondents upon the transfer of the licensed business Rumpoles, to the respondents, trading as partners, in 2003.  The respondents endeavoured to have the claimant sign a “contract”, but without success.  It seems there was some dispute between the claimant and the respondents concerning certain contract terms.  There is no evidence but that the claimant was generally an entirely satisfactory employee; there was no evidence that he had any employment difficulties or disciplinary issues throughout his long-standing employment with Rumpoles.  This was as true after as before the time when the respondents took over Rumpoles, save for some incident which occurred in November 2003.  Whatever may have transpired on that occasion the important thing is that there were no disciplinary proceedings taken by the respondents at the time.  The claimant had no reason to believe that anything untoward would emerge in the future as a result of whatever might have occurred in November 2003.  

8.	On 3 November 2004 the claimant attended work at Rumpoles.  The tribunal accepts that he was, certainly to some extent, in an intoxicated condition and was suffering from lack of sleep.  If at that time he had been suffering from stress and thus entirely or partially unfit to work on that account, the claimant certainly had not communicated any of that to his employers whether on or before that date.  The respondents therefore had no reason to believe that he was suffering from stress nor from any other physical or mental condition adverse to otherwise than full work capacity on his part, save for the alleged intoxication issue.  Mr Dunne, on behalf of the respondents, therefore had no reason to believe anything other, put quite simply, than that the claimant had attended work in an unfit condition due to intoxication. 

9.	Mr Dunne could perhaps have sent the claimant home for the day and told him to report to work the next day.  However, in his discretion he chose to give the claimant an opportunity to “sober up”.  Mr Dunne thus asked the claimant to return to work that day when he was in a fit condition.  The claimant, by his own admission then consumed more alcohol off the premises.  He returned in all probability in a more intoxicated condition than before.  He was then summarily sent home by Mr Dunne and disciplinary proceedings were taken by the respondents.  

10.	In terms of fairness of procedure, there is nothing whatsoever in the invoking of these disciplinary proceedings which the tribunal finds to be untoward or unfair.  In all respects the disciplinary charges were properly put to the claimant.  The evidence was clarified.  The hearing appears to have been entirely fair.  The decision was thus taken by Mr Reid that the claimant’s conduct amounted to gross misconduct.  Mr Reid’s decision to dismiss the claimant fell, in the tribunal’s opinion, within the band of reasonable responses of a reasonable employer.  Certainly if the matter had rested there, that would have been the end of it.

11.	However, the claimant was fairly afforded an appeal and he chose to appeal the decision.  An appeal hearing was then held before Mr Brennan.  In the course of that hearing it certainly seems that Mr Brennan took account of two specific factors, those alluded to above.  These are what might be termed the ‘additional evidence’ issue and also the ‘previous occasion’ issue.  This caused the tribunal to have some concern. 

12.	Firstly, as is clearly confirmed in his letter to the claimant after the appeal hearing concluded, Mr Brennan took account of and was influenced by other evidence of employees.  That additional evidence was not properly and not fairly put before the claimant in order to entitle the claimant to raise some comment and possibly endeavour to engage in a rebuttal.  These (unnamed and unidentified) employees were seen by Mr Brennan to have corroborated the view taken by Mr Dunne that the claimant was ‘extremely drunk’ and to support his version of events, not least in terms of the degree of intoxication alleged.  They are described as ‘third party statements’, without identification as to whether or not these statements were oral or in writing and under what circumstances these were taken.  Nothing at all of this was put to the claimant.  Yet clearly this evidence influenced Mr Brennan’s decision but without the claimant having a fair chance to counter this.

13.	In addition, Mr Brennan’s letter alludes to the ‘previous occasion’ and to behaviour of a ‘similar manner’ or ‘similar fashion’.  This must be an allusion to the November 2003 incident.  That incident, which was construed by Mr Brennan as a disciplinary matter, is thus used by Mr Brennan to illustrate the point that the claimant would have been aware, on account of this previous incident, that he might be dismissed for a repetition of this alleged misconduct.  Yet no disciplinary proceedings were ever taken against the claimant.  

14.	By this means the claimant encountered, as it were, the worst of all possible worlds.  The respondent at the appeal stage was relying on a previous allegation of misconduct, but without that alleged misconduct ever being the subject of any formality of proceedings and without the previous allegations ever being fairly and properly put to the claimant as part of the respondent’s disciplinary process.  In the opinion of the tribunal that was quite unfair.  To the extent to which both of these foregoing points influenced the decision of Mr Brennan to uphold the original decision to dismiss, the decision of Mr Brennan on behalf of the respondents on appeal was unfair and unjust to the claimant.  That decision in the tribunal’s view did not fall within the band of reasonable responses of a reasonable employer.  	This unfairness is sufficient to render the decision on appeal to uphold the dismissal of the claimant unfair.  On account of this, the tribunal concludes that the claimant was unfairly dismissed by the respondents.

15.	In terms of compensation for this unfair dismissal, the tribunal is obliged to award compensation for loss flowing from the dismissal insofar as that loss is attributable to the actions of the employer; there must be a causal connection.  In this instance, on the available evidence, the claimant has been incapable of work since the date of the dismissal.  However, as was very fairly conceded in the submissions made on behalf of the claimant, there is no evidence before the tribunal that the claimant’s unfitness for work in any manner preceded the dismissal nor, indeed and materially, that it was caused by or connected with the dismissal.  In the absence of any cogent evidence connecting the unfitness with the dismissal, the tribunal is unable to conclude that the claimant’s loss post-dismissal was as a result of or arose in any way from the dismissal by the respondents.  As a result of that, the claimant’s only entitlement is to a basic award of compensation.  There is no compensatory award available to the claimant in these circumstances.

16.	The tribunal therefore awards compensation as follows and Orders that to be paid by the respondents to the claimant:-

	Gross wage per week (the statutory maximum then applicable)

£270.00 x 20.5 weeks = £5,535.00

17.	The claimant also made a claim for compensation for loss of wages and unlawful deductions.  The tribunal was faced with insufficient evidence to determine that claim in the claimant’s favour, on the facts.  Accordingly, that aspect of the claimant’s case is not made out and is dismissed by the tribunal, without further order.

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

Chairman:

Date and place of hearing:	23 January 2007; 28 February 2007; and 15 May 2007, Belfast.

Date decision recorded in register and issued to parties: