Harris v The Multiple Sclerosis Society... [2008] NIIT 1476

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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Harris v The Multiple Sclerosis Society... [2008] NIIT 1476_07IT (14 October 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1476_07IT.html
Cite as: [2008] NIIT 1476_7IT, [2008] NIIT 1476_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1476/07

CLAIMANT: Kieran Harris

RESPONDENT: The Multiple Sclerosis Society of Great Britain & Northern Ireland

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. The claimant's claim is dismissed in its entirety.

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mr F Dodds

Mr N Wilkinson

Appearances:

The claimant was represented by Mr Gerry Grainger, Barrister-at-Law, instructed by Rosemary Connolly Solicitors.

The respondent was represented by Mr Kevin Jaquiss of Cobbetts Solicitors.

Issues

The issues to be determined by the tribunal were whether the respondent had shown the reason for dismissal, and if so, whether in all the circumstances, the dismissal of the claimant was fair or unfair. If the dismissal was found to be unfair, the tribunal had to decide the compensation to be awarded to the claimant, who did not seek re-instatement or re-engagement.

At the outset of the hearing the claimant's case was that the Multiple Sclerosis Society of Northern Ireland and not the respondent was his employer. Therefore the tribunal raised an issue as to whether the correct respondent was a party to the proceedings, given that an order had been made on an earlier date by another chairman dismissing MSSNI as a party to the proceedings, which had not been challenged. Following representations from the parties the tribunal allowed time and an agreement was reached between the parties whereby the claimant accepted that at the date of his dismissal, the respondent was his employer.

Evidence

The tribunal considered the written and oral statements of Mr Simon Gillespie, Mr Tony Kennan and Ms Elizabeth Rantzen on behalf of the respondent and the oral evidence of the claimant Mr Kieran Harris and his witnesses Mrs Josephine Byrne, Mr Damien Carragher, Mr Gerard Killen, Mr George Moore and Ms Majella McCloskey of ACOVO. The Tribunal also considered documents to which it was referred in four large ring binder files of documentation provided by the parties.

Findings of Fact

There was little agreement between the parties as to the facts of the case and having considered the evidence the tribunal found the following relevant facts to be proven on a balance of probabilities:

The Multiple Sclerosis Society of Great Britain and Northern Ireland (the respondent society) is a registered charitable trust providing services in England, Wales, Scotland and Northern Ireland to people affected by multiple sclerosis and allied conditions (MS). The overall governance body is the Board of Trustees ("The Board") elected by members of the society or co-opted by the Board. The Board is empowered under its constitution to delegate powers to National Councils in each of the regions in the United Kingdom to manage the affairs of the respondent in that region. The national councils and regional committees agree to abide by the objects, policies and methods of the respondent. Each national region may nominate a person to act as a Trustee, however only the Board has power to expel or exclude a Trustee if it is considered to be in the interests of the respondent society to do so. At the relevant time Mr Kennan was the Chairman of the Board of Trustees.

The respondent society delegated powers to the Northern Ireland Council, which carried out its work through the Multiple Sclerosis Society of Northern Ireland (MSSNI). As such MSSNI was a constituent body of the respondent society with its own constitution which the claimant helped to draft in 1999, approved by the Board. The Northern Ireland Constitution provides that the annual general meeting must be held in May and that the membership of the MSSNI must appoint auditors at the AGM. The Northern Ireland Council as the governing body in Northern Ireland delegated the ordinary business of MSSNI to the Executive Committee, which consisted of voluntary officers elected at the annual general meeting. At the relevant time the officers were Mrs Josie Byrne, the Chairperson; Mr Damien Carragher, the Treasurer; and Mr George Moore, the Secretary. Mrs Pat Crossley was the Vice Chair and was nominated by the Northern Ireland Council to be the Northern Ireland Trustee. Her role as Trustee included but was not limited to ensuring that MSSNI's voice was heard at meetings the Board of Trustees relating to matters concerning Northern Ireland. The MSSNI was largely self supporting and did not rely on the respondent society for funding of projects.

The powers delegated to the Northern Ireland Council included the employment of staff. The MSSNI terms and conditions of employment contained a disciplinary code and procedure under which an employee may be suspended pending investigation of gross misconduct. This contains a non exhaustive list of examples of gross misconduct. The normal penalty where after investigation, gross misconduct is proven was stated to be dismissal without notice or pay in lieu of notice. These terms and conditions of employment were almost identical to those used by the respondent society for staff employed elsewhere in the UK. The respondent society has in place a Code of Conduct which contains a statement of values for employees and volunteers throughout the four regions and provides for mutual respect in working relationships and further prohibits harassment in any form. This Code was incorporated into the MSSNI handbook which was provided to all staff employed in Northern Ireland.

The claimant was employed initially as Head of Promotions from 15 April 1996 and as Director from 1999 until his effective date of dismissal on 9 May 2007. It was accepted that the claimant's reporting line until 8 February 2007 was through the Northern Ireland Chairman to the Northern Ireland Executive and Council. It was not disputed by the respondent society that the claimant achieved many successes in his role as Director, notably in raising the profile of MSSNI, encouraging people with MS to become involved in the governance bodies of MSSNI and the supervision of the planning and construction of the Resource Centre in Annadale Avenue. He enjoyed the support of the Executive Committee and Services Team and in 2005 he was nominated for UK National Honour by Mrs Crossley.

As Director, the claimant was responsible for the overall management and leadership of the MS Society Northern Ireland and acted as line manager for the MSSNI services team. He was required to ensure that the Northern Ireland Executive Committee/Northern Ireland Council had the information they required to be effective in their role. The claimant attended meetings of the Northern Ireland Council and Executive Committee. He accepted that it was his responsibility as Director to advise those bodies in relation to governance and constitutional issues but not to participate in the decision making process. It was the claimant's case that the Services Team and the Executive Committee and Council worked together happily as a team until mid 2006. It is clear that the Executive Committee members were committed and dedicated to the work of MSSNI. Throughout most of 2006 MSSNI did not have a Finance Officer and during this period Mr Carragher performed the duties of this role in an effort to keep MSSNI's financial systems and records up to date. There was evidence before the tribunal of tensions in the relationship between MSSNI and the respondent society going back to late 2005/January 2006 relating to issues arising from the dissolution of a local branch in Northern Ireland.

It was the claimant's responsibility to attend national board meetings along with the Northern Ireland trustee to present reports on work carried out by MSSNI and submit Northern Ireland business plans and budgets for approval. The claimant told the tribunal that he found Board meetings largely irrelevant to the work of MSSNI and that he had previously been told that he was not permitted to contribute to the discussions unless he was addressed on matters relating to Northern Ireland. Accordingly he would attend as and when his other duties permitted. He was required to participate in Four Nations Senior Management Team meetings by teleconference in order to ensure operational consistency in the implementation of board decisions and policy throughout the regions.

Mr Gillespie was appointed as Chief Executive by the respondent in July 2006. He had responsibility to the Board for the work of the respondent society at an operational level throughout the four regions. The claimant and Mr Gillespie met for the first time at a meeting for the Board of Trustees on 3 August 2006. Mrs Crossley was also present at the meeting which was being held in Edinburgh to increase the understanding of the Board and senior management teams of the work of the society and the regions. It was proposed that a similar meeting could be held in Belfast and Mr Kennan formally requested the claimant to take back the Board's request to the Executive Committee that a Board meeting be held in Belfast at a future time. The Board also decided that the respondent society would apply to join the Fundraising Standards Board (FSB) scheme of self regulation for fundraising, with one primary contact and one complaints co-ordinator to cover the society throughout the UK. The covering sheet to the proposal stated that there was to be further consultation with Scotland and Northern Ireland. The claimant did not express any disagreement with this decision although he told the tribunal that the view of Executive Committee was that MSSNI should register separately with the FSB. He wrote on the covering sheet to the proposal "They want one membership…. I don't think so". This document did not come to Mr Gillespie's attention until after the suspension of the claimant.

There was a dispute between the parties as to what Mrs Crossley said at this meeting about the possibility of a Board meeting being held in Belfast. Mrs Crossley was not called to give evidence. The claimant's case is that Mrs Crossley said that she would "love to see a Board meeting being held in Belfast but that the decision was not up to her it was up to the Director." Mr Kennan's recollection was that she said she would personally love to see the Board meeting being held in Belfast but that it was up to the Director to take it back to the Executive Committee. Mrs Crossley's exact words are not recorded in the Board minutes and she was not called to give evidence. However on careful consideration of the evidence the tribunal finds on a balance of probabilities that Mr Kennan's version is correct. In any event the tribunal is satisfied that it was clearly understood that the matter would be decided by the Executive Committee and not the claimant.

Following the Board meeting the claimant reported to Mrs Byrne that Mrs Crossley had told the Board of Trustees that she would love to see a meeting taking place in Belfast but that the decision was up to him and that her comments had embarrassed him. Further the claimant told the tribunal that he was surprised that Mrs Crossley had not raised any objection to this proposal as she was aware that the view of the Northern Ireland Council/Executive was that MSSNI should join the FSB in its own right. The tribunal noted that there is no recorded discussion of either of these matters prior to August 2006. The claimant did not raise his concerns with Mrs Crossley herself about these matters at that stage.

The Northern Ireland Executive Committee met on 8 August 2006 and was attended by the claimant and other members of the services team. Mrs Crossley reported the Board's request and expressed the view that she personally would love to see a Board meeting being held in Northern Ireland. She was criticised for purportedly giving her "personal agreement" to this proposal at the board meeting when it was "against the wishes of the Executive and the Services Team" and also for giving the impression that the decision was for the claimant to make. The tribunal noted that the minutes did not in fact record, as was initially contended by the claimant and his witnesses, that Mrs Crossley said at this meeting that the decision was for the claimant. The claimant and members of the Services Team joined in the discussion and were openly critical of Mrs Crossley.

The claimant was present after the meeting when Mrs Crossley who appeared upset and angry, told Mrs Byrne and Mr Carragher that she would resign from all of her positions in MSSNI. The claimant's case is that Mrs Byrne told Mrs Crossley to go home and think things through and afterwards they would discuss matters further. Mrs Byrne subsequently wrote to Mr Kennan to inform him that the Executive Committee had decided to invite the board to hold a meeting in Northern Ireland on costs grounds and also that Mrs Crossley accepted that she was "incorrect to give an impression to the Board that she was in favour of the meetings being held in Northern Ireland." She stated that "the Trustees comments at the board meeting, although unintentional had put the director in a difficult and embarrassing position".

There was an exchange of correspondence in which Mrs Byrne tried to arrange a meeting with Mrs Crossley to discuss matters which she felt were unresolved following the Executive Committee on 8 August. Mrs Crossley wrote to Mrs Byrne to advise that due to other commitments she was unable to meet. Mrs Byrne discussed this correspondence with the claimant. Mrs Byrne wrote to press Mrs Crossley to meet and stated that there was "an obvious relationship difficulty between you as the Northern Ireland Trustee, the Executive Committee and the Services Team". Mrs Crossley responded that she felt she was being "harassed into meeting a deadline that I can't understand and can't fulfil". Mrs Crossley sent copies of the correspondence to Mr Kennan. The claimant told the tribunal that he spoke to Mrs Crossley on one occasion and advised her to speak with Mrs Byrne as this was a governance matter. He was present on other occasions when Mrs Byrne spoke with Mrs Crossley after meetings in NICVA. Following one of these encounters, it is recorded that Mrs Crossley had a conversation with Mr Kennan on 21 September 2006 in which she told him that the previous day the claimant had asked her to resign as Trustee and that she could say that she was busy and stay on in another role, that there would be a vote of no confidence in her and that staff did not want her and that trust had completely broken down. The claimant denied these allegations at the hearing although the tribunal noted that he later told Ms Louise Simpson of Grant Thornton that he had suggested to Mrs Crossley that she could step down from the role of trustee, a vote of no confidence was subsequently passed in the trustee and the correspondence from Mrs Byrne to Mr Kennan did refer to a breakdown in the relationship between the trustee and the services team. The tribunal concludes from this that the claimant did make these statements to Mrs Crossley.

Mrs Crossley was informed by Mrs Byrne that a special meeting of the Executive Committee was to be held on 29 September 2006 to discuss the responsibilities of the Trustee. Mrs Crossley faxed a letter to Mrs Byrne to advise that she would not be attending the meeting as she did not feel she would get a fair hearing because of the "tenor and tone of recent meetings" which she had found to be "harassing and bullying". The meeting proceeded in Mrs Crossley's absence and a vote of no confidence was passed against her on the basis that there was unanimous agreement that the relationship between the Trustee and the rest of the organisation had completely broken down and further that "given recent unfortunate developments the relationship between the Northern Ireland Trustee and the Services Team had also completely broken down". The claimant told the tribunal that he referred to the MSSNI constitution and advised Mrs Byrne about the process to remove the Trustee. It was his view that as the Northern Ireland Trustee had been selected by Northern Ireland she could be deselected, other than this, he contended, he played no part on the decision to "deselect" the Trustee. This meeting was attended by the majority of the Services Team in addition to the claimant. Both the claimant and Mrs Byrne wrote separately to notify the respondent that Mrs Crossley was no longer the Northern Ireland Trustee and that Mrs Byrne would be acting in her place.

Mr Kennan reported at the next meeting of the Board on 6 October 2006 on the treatment of Mrs Crossley and the process followed to remove her as a trustee and other matters of concern at a governance level. These arose because the date of 2006 AGM was put back to October apparently in contravention of the MSSNI constitution and because he was informed that MSSNI had made an application to join the FSB in its own right in contrary to the decision of the Board. The documentation shows that the 2005 annual general meeting of MSSNI decided that the 2006 AGM should be held that October to coincide with the MSSNI annual conference. A motion was passed delegating responsibility to the claimant and Mr Carragher to make recommendations subject to ratification by the Executive Committee for the appointment of auditors. At a council meeting on the 7 February 2006 Mr Carragher requested authority subject to quotations to appoint auditors and on 4 April 2006 he notified the Northern Ireland Executive Committee that a firm of auditors had been appointed by himself and the claimant.

The documentation shows that on 23 August 2006 Ms Kinney had written to the Fundraising Standards Board enclosing a membership application form and signed contract. The membership application form named the claimant as the complaints co-coordinator and was countersigned by him and the covering letter stated that an application for membership was enclosed. The tribunal found that in signing the Fundraising Standards Board Scheme Membership Agreement Ms Kinney was effectively holding out that she was the authorised signatory of MSSNI which was "empowered to enter into the agreement with the FSB" and that the "Trustees had resolved that the charity should become a member of the scheme and should enter into this agreement and abide by the terms and conditions". No cheque was ever sent in respect of the registration fee by or on behalf of MSSNI. Ms Kinney sent an email to the FSB administrator to acknowledge confirmation of membership on 29 August 2006. The claimant confirmed at the hearing that Ms Kinney acted with his authority and knowledge but he contended that this was not an application for membership but simply an expression of interest in joining the scheme. He did not subsequently mention at Four Nation Teleconferences that MSSNI had applied either to join or to register an interest when the implementation of the Board decision was discussed. At the Council meeting of 1 November 2006 the claimant explained to Council members that MSSNI was being encouraged to join FSB "under its own banner and this seemed to make good practical sense to everyone except the MS Society UK Board". At the same meeting Ms Kinney told the council that it was "not too late to apply and that the society must show that it wants independent membership". Ms Kinney stated that the "MSSNI could make an application for independent membership and it has been preparing to". A proposal was then passed that MSSNI should apply for membership.

A Chairman's Committee was established by the Board to investigate these matters and make findings and recommendations to its December meeting. At this stage these matters were perceived to be purely issues relating to governance. The terms of reference were sent to Mrs Byrne and copied to the claimant. The correspondence from Mr Kennan was discussed at the council meeting of MSSNI on 1 November 2006 and a further vote of no confidence was passed in Mrs Crossley during which the claimant and other staff members were present.

The Chairman's Committee attended at the Resource Centre on 28 November 2006 to meet with the Northern Ireland officers. The claimant and Services team were in attendance. The meeting was heated and Mr Kennan gave evidence that the claimant lost his temper. This was denied by the claimant at the hearing however Mr Carragher confirmed that there were "a lot of angry people at that meeting" although the claimant in his view "was not the most angry". The claimant and members of the Services team joined in calls for the withdrawal of allegations of bullying and harassment by the trustee and the allegations of difficulties between the trustee and the claimant. The claimant maintained that Mrs Crossley had stated that she had not made any allegations of bullying and harassment and that this was recorded in minutes of the council meeting of 1 November 2007. It was accepted by the claimant and his witnesses at the hearing that the minutes actually record that "she said she knew nothing of any correspondence citing allegations of harassment and if they had been made it was without her knowledge and nothing to do with her". The claimant challenged that Mrs Crossley should remain as trustee. He suggested that she had failed to represent the views of MSSNI on the two issues the holding of a board meeting in Northern Ireland and the FSB. He stated that she had refused to meet to discuss governance matters and that he had advised Mrs Crossley to speak to Mrs Byrne. In relation to the Fundraising Standards Board the claimant advised the Chairman's committee that he had not said anything at the Board meeting is that he had previously been instructed that he was not allowed to talk and that the Trustee was quite aware of Northern Ireland views and feelings and she voted with the board when she should not have done. He stated that he was not going to challenge the Trustee and embarrass her. The Chairman's Committee was informed that an application had not been made and no cheque had been sent to the FSB. He also protested at the minutes of the October board meeting which gave the impression that he had not bothered to turn up. At the end of the meeting Mr Kennan advised that he would report back to the Board.

The claimant and Mrs Byrne attended the meeting of the Board on 7 December 2006. They were asked to leave the meeting, and Mrs Crossley absented herself, during the chairman's committee report. This expressed dissatisfaction with the manner in which the meeting had been conducted, including the presence of members of the services team at the meeting. Mr Kennan expressed particular concern that Mrs Byrne and Ms Kinney had apparently lied to him when they said that a cheque had not been sent to FSB when he believed that this was not the case. The tribunal accepted Mr Kennan's evidence that at this time he had information from the FSB they had received a cheque from MSSNI for the membership fee. When he was later informed by FSB that this information was incorrect, he apologised to Mrs Byrne and Ms Kinney for this misunderstanding. The tribunal is of the view that Mr Kennan acted in good faith in this matter in relying on information provided by the FSB.

The Board agreed to conduct an investigation with the MSSNI Trustee and MSSNI Chair into the allegation of harassment and bullying and into the events leading up to the votes of no confidence; to set up a special committee to hear the case put by MSSNI for the removal of Mrs Crossley as Trustee and Mrs Crossley's case; and to carry out a governance review in Northern Ireland. Both Mrs Byrne and the claimant expressed concern when they rejoined the meeting, that they had been excluded from the discussions of the closed item. The claimant then presented the 2007 MS Society Northern Ireland business plan and budget which was approved by the Board. A letter of protest was later sent to Mr Kennan by Mr Moore protesting at the exclusion of Mrs Byrne and the claimant from the closed item.

When the Chairman's Committee met with Mrs Crossley on 4 January she confirmed that she had not at any time anywhere withdrawn her allegation of harassment and bullying.

There were increasing concerns about the claimant's role in relation to these matters. A number of other matters came to Mr Gillespie's attention in the latter part of 2006 concerning the possible failure to implement national schemes and policies, including the vetting of volunteers by the Criminal Records Bureau and a risk sharing scheme known as the Fast track scheme which was established in 2002. The aim of this was to provide funding for MS nurses throughout the UK so as to make disease modifying therapies available to people with MS. Serono, a pharmaceutical company and one of the partners in that scheme, had previously provided financial support to the MSSNI website. Mr Marron, a sales representative of Serono, approached the claimant to suggest that there was funding available from Serono's Irish Budget for an MS nurse. The documentation shows that Ms Kinney drew up a proposal in early 2006 for the funding of an MS nurse in the Southern Health Board which was submitted to Serono. On 6 July 2006 Ms Sharon Haffenden, Director of Research and Services at the National Centre had written to the claimant to advise that an issue had been raised by one of the pharmaceutical partners in the risk sharing scheme that any Northern Ireland funding request should be sourced through the fast track funding scheme with the UK Society. Her letter suggests that this issue was previously raised with the claimant by Mike O'Donovan, former Chief Executive of the respondent society. The claimant passed this correspondence to Ms Kinney who informed Ms Haffenden that the matter would be discussed at the next meeting of the Northern Ireland Executive Committee. Ms Kinney wrote again on 10 August 2006 to Ms Haffenden and advised that the matter had been discussed on 7 August and at the Northern Ireland Executive Committee meeting on 8 August. The minutes of the latter meeting do not reveal any such discussion. An agreement was signed between MSSNI and Serono on 4September 2006.

Following this, Mr Marron sought clarification from Ms Kinney in relation to the constitutional status of MSSNI in order that Serono would release funding. On 24October 2006 Ms Kinney wrote to Mr Marron to advise that "the MS Society of Northern Ireland is actually that and operates under its own constitution" and that it was "singularly responsible for generating its own income providing services in line with its planning cycle." She purported to set out extracts from the MSSNI constitution to remove any confusion about their responsibilities and authority. References to the respondent society were deleted from the extract. As a consequence of this letter Mr Marron sent an email to the relevant Serono committee in which he advised that MSSNI had come back with "a very helpful clarification of the relationship between these two organisations. In summary there is no formal relationship and these organisations both are wholly independent of each other". Ms Haffenden wrote to the claimant again on 3 November 2006 advising him that Serono had advised at the fast track partners meeting on 4 October that the request for funding by the MSSNI would need to go through the fast track scheme as it was directly related to the risk sharing scheme. Eventually this matter was resolved in January 2007 when an application was submitted by MSSNI for funding of the MS nurse through the fast track scheme. The correspondence between Ms Kinney and Mr Marron did not come into Mr Gillespie's knowledge until after the suspension of the claimant. The claimant confirmed at the hearing that Ms Kinney acted with his express authority and contended that her letter was simply to correct an impression that MSSNI received funding from the national society. He contended that a complete copy of the MSSNI constitution had been provided at the outset.

The 2 January 2007 Mr Gillespie sent several emails to the claimant about a number of matters. He instructed the claimant to forward a copy of his current contract of employment. Shortly after his appointment Mr Gillespie had requested a copy of the claimant's terms and conditions of employment to ensure that they were consistent with employment contracts throughout the society. The claimant responded on that occasion that he would consult with his executive committee in relation to this request and inform Mr Gillespie of the outcome. He did not subsequently reply to a further inquiry by Mr Gillespie as to the outcome of that consultation or provide a copy of his contract. Mr Gillespie further invited the claimant to bid for funding for projects from the respondent society's central reserve funds, following on from the claimant's report to the Board meeting on 7 December. He also raised the issue of the FSB, although this email was not in the bundles of evidence. At about this time Mr Gillespie wrote to the Chairs of branches, regions and national support groups. The claimant was present at a meeting of the Four Nations Teleconference at which at which the letter was discussed and at which he raised no objection. He did not draw this fact to the attention of the Northern Ireland Officers.

Upon receipt of these emails the claimant drafted a private and confidential letter to the Northern Ireland Officers in which he criticised the actions of Mr Kennan and Mr Gillespie in the strongest terms both with reference to the relationship between the respondent society and MSSNI and his own position. He refers to Mr Gillespie's emails and his letter to branch chairs under numbered headings. The letter was typed by Ms Kinney who was standing in for his personal assistant. The claimant told the tribunal that on reflection he decided it was inappropriate to send the letter and that he destroyed it. A copy of this letter came into the possession of the respondent after the claimant's dismissal.

On 5 January 2007 the officers wrote to Mr Kennan to protest about the emails sent by Mr Gillespie to the claimant on 2 January 2002 and the letter to Branch Chairs. The officers advised Mr Kennan that they had instructed the services team in Northern Ireland "not to take part in any Four Nation debates, correspondence and discussions including attendance at any meeting until such times as all of the current issues had been satisfactorily resolved". In addition the letter advised that the claimant had been instructed not to provide his contract of employment or to bid for funding. Mrs Byrne told the tribunal that she drew up this letter at a meeting with the other Northern Ireland officers, that it was probably typed by Ms Kinney and that she personally circulated it to all MSSNI staff in the Resource Centre. She told the tribunal that she had not seen the letter drafted by the claimant on 3 January at any stage. The tribunal notes that both in content and form the letter of 5 January is remarkably similar to the letter drafted by the claimant and found the evidence of the claimant and his witnesses to be contradictory and lacking credibility.

Mr Kennan discussed with Mr Gillespie the potential adverse impact that this instruction of non cooperation would have on the work of the society at an operational level. Mr Gillespie decided that he should try to identify a potential mediator and then contact the claimant to discuss ways of resolving of the difficulties between MSSNI and the respondent society. To this end he contacted Ms Majella McCloskey of the Association of Chief Officers of Voluntary Organisations (ACOVO) with a view to identifying a potential mediator. He spoke with her initially on 8 January 2007 and at the outset of their conversation Ms McCloskey informed him that the claimant was a member ACOVO. Ms McCloskey initially agreed to keep their discussion in confidence and Mr Gillespie disclosed information to her concerning dispute between the Respondent and MSSNI. The tribunal accepted Ms McCloskey's evidence that she formed the impression that the claimant's role in these matters was being questioned and that following this conversation she became uneasy perceiving that she may have a conflict of interest. On the advice of the officers of ACOVO, she contacted the claimant to advise him of her conversation of Mr Gillespie, who in turn informed Mrs Byrne.

Mr Gillespie subsequently contacted the claimant and arranged to call into the Resource Centre on 17 January 2007 as he had other business in Belfast. He told the tribunal that it was his hope to speak to the claimant alone to try to find a resolution of difficulties at an operational level, however as Mrs Byrne, Mr Carragher and Mr Moore were also present for parts of the meeting, this was not possible. The claimant questioned him about his contact with ACOVO. Following this meeting a formal complaint by the Northern Ireland Officers to Mr Kennan that Mr Gillespie in contacting ACOVO had deliberately set out to undermine the senior staff and governance groups of MSSNI.

A further meeting which took place on 21 January 2007 as part of the Chairman's Committee investigation with the Northern Ireland Officers terminated when the Northern Ireland Officers withdrew saying that they wished to take legal advice following questions about the process used to remove the Northern Ireland Trustee. Mr Kennan wrote to Mrs Byrne on 23 January 2007 urging the withdrawal of the instruction to the Services Team not to participate which he regarded as a refusal to engage operationally with the national society. He suggested a meeting between himself and his two vice chairs and Chief Executive and the officers and claimant on 2 February to have face to face discussions to resolve the matters of contention. The Northern Ireland Officers advised Mr Kennan that they were unable to meet with the Chairman's Committee when it travelled to Belfast on 2 February but suggested a meeting on a later unspecified date.

Mr Kennan prepared a report on behalf of the Chairman's Committee for presentation at the next meeting of the Board on 8 February. This was sent by Mr Kennan to the Northern Ireland officers and copied to the claimant. It was circulated to members of the Northern Ireland Services Team who held a meeting at which the claimant was not present to discuss the report. The minutes of the closed item at the December Board meeting were enclosed. Particular consternation was caused at Mr Kennan's recorded concern that Mrs Byrne and Ms Kinney had apparently lied to him. The claimant and Mrs Byrne sought legal advice in relation to this document and advised Mr Kennan that MSSNI would provide a response in time for the board meeting of 8 February 2007. No response was sent and it was the claimant's case that a response was still being prepared on the morning of 8February 2006.

Neither the claimant nor Mrs Byrne attended the Board meeting on 8 February. The Board, in the absence of any communication from MSSNI, accepted the recommendations of the Chairman's Committee and decided to revoke the powers delegated to the Northern Ireland Council. Mr Gillespie was directed to manage the operational affairs of the respondent society in Northern Ireland and to act as line manager to the claimant. The board also directed a full governance review of MSSNI. There has been no legal challenge mounted against the decision of the Board of Trustees by or on behalf of the Northern Ireland Council.

Prior to 8 February 2007 Mr Kennan and Mr Gillespie had sought legal advice about constitutional issues including the possible revocation of powers delegated to the Northern Ireland Council by the Board. These discussions touched upon the claimant's role in the events leading to the instruction to withdraw cooperation. It was contemplated that in the event that powers were withdrawn that it would be necessary to suspend the claimant pending investigation and possible disciplinary action. Mr Gillespie took a number of steps in anticipation of the possible withdrawal of delegated powers, including the preparation of a paper known as the "Birmingham plan" which contained a number of options relating to the claimant's employment. He consulted with the Charity Commission, engaged the services of the public relations firm and approached Mr Walker, former Director of Finance and Marketing of the respondent society, to ascertain his availability temporarily to act as director of MSSNI at short notice.

Mr Gillespie on being advised of the Board's decision went to the Resource Centre accompanied by Mr Walker and informed the claimant that he was being suspended pending an investigation into allegations of gross misconduct. The claimant was escorted from the Centre by Mr Walker. Reporters were present outside the centre in response to a press release which was issued that morning on behalf of the respondent. The Board's decision to suspend powers was reported on local television and radio news and current affairs programmes including a discussion the following morning on the Stephen Nolan Show. Mr Gillespie participated in this programme and a number of calls were made into the show by members of the Executive Committee criticising the actions of the Board.

The allegations of misconduct were subsequently confirmed to the claimant in writing and were that as Director, the claimant had a fiduciary duty under the Northern Ireland Constitution to conduct himself and the affairs of the Society in accordance with its constitution and that there was evidence to suggest that through his role as Director and through the involvement of staff at the Executive Committee, it was the claimant rather than Council who had made key decisions about the work of the Society in Northern Ireland; that the trustee was removed contrary to the requirements of natural justice and constitutional provisions after she expressed personal views with which the claimant disagreed; that the claimant's personal conduct during the purported removal of a trustee fell short of that expected of a senior member of MS Society Staff; that he caused or permitted FSB registration contrary to the agreed approach of the Board and that he was party to misleading the Chairman's committee as to the steps that had been taken; and that he committed MSSNI to a course of action in its relationships with National MS Society putting at risk work nationally and in Northern Ireland to the detriment of the interests of people affected by multiple sclerosis.

The respondent appointed Ms Louise Simpson of Grant Thornton to conduct an investigation. The terms of reference of her investigation were sent to her by the respondent's solicitor who specified that her report would have the dual purpose of reporting to Mr Gillespie on the issues set out in his letter dated 8 February 2007 to the claimant and also to the task group of Trustees which was established by the Board meeting on 8 February to investigate the allegation of harassment and bullying made by the Northern Ireland Trustee to enable them to consider what recommendation to make to the Board. The report to the Chief Executive was to establish whether there was any disciplinary case for the claimant to answer with regard to his involvement in decision making, in particular the decision to withdraw cooperation and whether he was party to "the bullying and harassment of the Northern Ireland Trustee when she disagreed with him and her unconstitutional purported removal as a Trustee".

In the process of her investigation Ms Simpson interviewed Mrs Crossley, the claimant and Mrs Byrne. She considered the constitution of the National Society and the MSSNI and Society's Code of Conduct on standards of behaviour for both volunteers and trustees; correspondence between the claimant and Mr Kennan, the minutes of the Board of Trustees' meeting of 3 August 2006 and the report of the Chairman's Committee to the Board of 8 February 2007. The claimant and Mrs Byrne were interviewed separately accompanied by Ms Kinney whose notes were available to the tribunal. There was no other contemporaneous record. Ms Simpson's report recommended further investigation through the disciplinary process of the claimant's apparent non-compliance with national direction, for example in relation to Fundraising Standards Board, CRB checks and the dealings with pharmaceutical companies and committing of MSSNI to non-co-operation with the National Society and further that the respondent should conduct a wider investigation into alleged instances of bullying and harassment made by Mrs Crossley during her investigation.

Mr Gillespie wrote to the claimant to invite him to a formal disciplinary meeting on 13 April 2007 to deal with the five issues which were set out in his letter dated 8 February 2007. He specified that additional matters had come to light since the claimant's suspension which suggested to him that the claimant had been using his own policy and procedures without reference to the Society's national standards thereby putting the national society at risk. Mr Gillespie identified the following issues: MSSNI procedures for carrying out Criminal Records Bureau (CRB) checks and the refusal to disclose the process; an apparent lack of oversight of financial management of MSSNI in particular the absence of bank reconciliations, VAT records and management accounts and poor documentation of expense claims as detailed in a report prepared by Ian Donald, Director of Corporate Resources; the claimant's irregular attendance at Board meetings and withdrawal of all co-operation with the Society nationally; the operation of the Council and Executive Committee in Northern Ireland and the involvement of staff in the Executive Committee and Council meetings and decision making; and the non-compliance with organisational policies, procedures and best practice when employing staff with the reference to the employment of Gail Brown who was recruited initially on a temporary contract through Brightwater Recruitment Agency. She was made permanent after four weeks and the agency's placement charge was £4400. The claimant wrote to Brightwater Recruitment on 8 November 2006 that he had spoken to his finance committee and was instructed to make an offer of £2000, which offer was declined. The claimant was provided with a copy of the correspondence with Brightwater recruitment, Ian Donald's report and Ms Simpson's report and other documentation relating to the disciplinary matters were enclosed with this letter. Further documentation was subsequently sent to the claimant by letter dated 5 April.

On 12 April 2007 Mr Gillespie wrote again to the claimant advising that he had been following up on issues around MS nurse funding for Northern Ireland and that he was adding the further charge of gross misconduct that the claimant had been instrumental in MSSNI deliberately misleading Serono on the issue of MSSNI's status or that he had failed to correct the significant misunderstanding on Serono's part. It was further alleged that important commercial and financial decisions were made by Serono on the basis of this incorrect information which appears to have had a significant adverse impact of the timely provision of funding for the MS nurse in question. He enclosed correspondence between Mr Marron of Serono and Ms Kinney in which the latter appeared to represent that MSSNI was entirely separate from the respondent society.

On 14 April 2007 Mr Harris sent a lengthy response to the allegations made against him. He also objected to the involvement of Mr Gillespie in the disciplinary process against him in view of the formal complaint lodged by the Northern Ireland officers. Mr Gillespie rejected the latter objection on the basis that the complaint made against him was made by the Northern Ireland officers and not the claimant and also because the claimant would have the right to appeal if he was unhappy with his decision.

The disciplinary hearing took place on 20 April 2007. The claimant was accompanied by Ms Kinney. Ms Carolyn Ison, the respondent's personnel officer, took notes which the tribunal accepted were an accurate record of the meeting. At the outset of the hearing Mr Gillespie explained the process that he intended to follow and the claimant indicated that he had no questions in relation to the process. He did however state that he was attending under the strongest protest as he had been employed by MSSNI and reported to the Chair and Executive Committee and had never had any difficulty with his employment. The claimant was given the opportunity to respond to questions put by Mr Gillespie relating to each of the disciplinary charges against him recorded under a number of headings, namely: Fundraising Standards Board; Financial management; Appointment of Finance Manager CRB Checks Irregular Attendance at Board Meetings/non cooperation; Removal of the NI Trustee; Personal Conduct; Constitution; MS nurse/Serono.

The claimant confirmed to Mr Gillespie at the disciplinary hearing that he understood that the Board had decided that there would be single membership of FSB but that he had thought there was to be further consultation. He denied that there was an application for membership made on behalf of MSSNI but rather that the application forms were sent as "an expression of interest". The claimant was referred to his written comment on the cover page of the relevant board paper. He said that he had not raised objections at the Board meeting because he alleged that he had been informed previously that he was not to comment on matters that did not directly concern Northern Ireland and he had not mentioned that the forms had been sent at the Four Nations meetings because it was "out of his hands". He told Mr Gillespie that it had been discussed at the Executive Committee meeting but that it was not recorded because the discussion occurred after the meeting. He also told Mr Gillespie that the Northern Ireland Chair had said that they should complete and send off the application forms.

The claimant confirmed to Mr Gillespie that he had read the report of the UK Director on Finance on MSSNI Finance arrangements. He accepted that MSSNI were behind in bank reconcilations and VAT Returns and explained that there had been difficulties with financial management because of staffing problems. He told Mr Gillespie that he relied on the Treasurer, a qualified accountant, who had undertaken responsibility for financial accounts. He was concerned but not worried about the financial management of MSSNI. He explained that the AGM had taken the decision to delegate the appointment of auditors to the Treasurer and himself and he considered that this was in accordance with the constitution and that the final appointment of auditors was in any event approved at the February 2006 meeting of the Executive Committee. In relation to the allegation that he had failed to ensure that MSSNI implemented the National society's policy for carrying out Criminal Record Bureau checks in order to assess risk to vulnerable adults and children the claimant explained that MSSNI had relied systems approved by the PSNI in this regard and that it was unnecessary and would have been cumbersome to adopt the national system. The claimant explained that Gail Brown's appointment was made permanent without advertising the position as she appeared competent and there had been difficulty in recruiting anyone to this position. In relation to the further allegation that the claimant had deliberately misled the recruitment agency when he referred in correspondence about fees to a Finance committee, the claimant confirmed that there was not a formally constituted finance committee but that this was a term he used to describe whenever he and Mr Carragher would meet to have a conversation.

The claimant was asked about his alleged poor record (less than 50%) of attending board meetings. The claimant stated that he attended Board meetings whenever he could and had to prioritise meetings in relation to his work. The claimant stated that he had not offered any advice to the officers about their decision to instruct staff not to cooperate and that he had played no role in this decision. He also stated that he had always said that MSSNI needed to have a good working relationship with their colleagues in London and that he regarded non cooperation as being damaging to the work of the Society. He also stated that he had encouraged cooperation. He accepted that he had not provided advice in relation to constitutional issues concerning the removal of the trustee and admitted he had a misunderstanding in relation to the constitutional requirements for the removal of a trustee. He said that staff members were present at meetings at the invitation of the Executive Committee and Council and he considered that it was important that the collective view of MSSNI was portrayed. The claimant denied that he played any role in the removal of the trustee or the decision to withdraw cooperation and that he encouraged Mrs Crossley to speak to Mrs Byrne. He said that he saw non cooperation as damaging to the MS Society's work. He declined to comment whether he had agreed with the removal of the trustee and to the withdrawal of communications. He stated that he had a limited role in governance matters. The claimant's case was that he although he had seen a copy of the MSSGB constitution he had not read it recently. He believed that the Northern Ireland trustee should have drawn constitutional matters to his attention. When Mr Gillespie pointed out that the constitution provides that allegations of bullying and harassment should be investigated, the claimant responded that Mrs Crossley said that she never made the allegations.

The claimant said that at the time he had not understood the risk sharing scheme. Mr Gillespie referred the claimant to correspondence to him from Ms Haffenden and Ms Kinney's response. It was recorded that the claimant was unable to explain why although Ms Kinney said that the matter would be discussed by the Executive and Council there was no record of this in any of the minutes. The claimant was asked for his explanation for an email sent by Serono in which it is stated that MSSNI and MSSGB are two separate bodies with no formal relationship. The claimant stated that he was surprised by this and had no idea how Mr Marron could have got that impression. The claimant said that he was shocked to read the email from Mr Marron referring to two distinctly separate organisations.

It was agreed that the claimant could provide further information if he wished to Mr Gillespie by the 25 April 2007. The claimant wrote to Mr Gillespie on 23 April 2007 requesting a copy of the letter from the FSB advising that MSSNI had forwarded a cheque. He reiterated his understanding that he was employed by MSSNI and was responsible through the Northern Ireland chair to the Executive Committee and Council and that he carried out their instructions. He denied that he played any role in the removal of the trustee and stated that it was clear that the decision was taken by the Executive Committee and subsequently endorsed by Council.

After considering the evidence and the claimant's explanations, Mr Gillespie, compiled a report setting out each of his findings and decisions in relation to the allegations against the claimant. He did not believe the claimant's explanations. He formed the view that the claimant was guilty of gross misconduct and the appropriate sanction was dismissal without notice. He informed the claimant of his decision and his reasons for his decision at a meeting on 9 May 2007. The reasons for the decision to dismiss, sent to the claimant with a copy of the report, were that in Mr Gillespie's view the claimant had a leading part in committing the MSSNI to a path independent of and at odds with the MS Society; that attempts were made to remove the Northern Ireland Trustee because she did not agree with this approach; he failed to take active steps to fulfil his responsibility to uphold and sustain MSSNI as an active constituent member of the MS Society; there was a lack of openness and honesty in his dealings with people and outside the Society and in what he told Mr Gillespie at interview; that he was guilty of serious breaches of the MS Society's Code of Conduct in his involvement with the removal of the Northern Ireland Trustee; and that he had inappropriate involvement in key decisions without proper accountability.

The letter of dismissal went on to state that Mr Gillespie had found failings in the claimant's financial management of MSSNI and related matters which would not in themselves justify the termination the claimant's employment but were nevertheless considered by him to be serious in a manager of his experience and seniority. He stated that he had considered the matters which the claimant had asked him to take into account namely his service to MSSNI and success of his work in Northern Ireland. He also took into consideration that the claimant had the support of the elected officers in MSSNI for much of what he did but did not consider this absolved him of personal responsibility. Mr Gillespie's stated view was that there were no other roles to which the claimant could be transferred or any way in which his performance as Director could continue under some form of monitoring. In his view was that the claimant's conduct had destroyed the relationship of trust and confidence which previously existed between him and the MS Society.

The claimant gave notice of his intention to appeal against dismissal by letter dated 15 April 2007 on the grounds that the entire process was carried out without thought to natural justice and in a biased way; that his contract of employment was with MSSNI; that allegations concerning his activities in the removal of Pat Crossley were "completely ridiculous"; that comments service team members attending meeting were absurd as they only ever attended meetings at the request of the Northern Ireland Chair Officers committee and council; that allegations about financial records were unfounded and the Northern Ireland Treasurer or financial manager were never interviewed; that the notes relating to the withdrawal of cooperation were incorrect. He was neither for nor against the decision though it understood it and was bound to carry out the instruction of his line managers. He denied that he tried to mislead Mr Gillespie about his involvement in this and other matters.

On 18 June 2007, the claimant commenced employment as the Director of another voluntary organization in Northern Ireland, although this was less well paid.

Arrangements were subsequently made for the claimant's appeal to be heard by an independent person, Ms Elizabeth Rantzen with Ms Denise Fagg, who was a Trustee and the Chair of the Scottish Council. The claimant wrote to Ms Rantzen to object to the involvement of Ms Fagg on the basis that she had been present at all Board meetings since August 2006 at which the chairman's committee reports had been discussed and because she had participated in the decision to withdraw the delegated powers. Ms Rantzen wrote to the claimant confirming that the appeal would proceed as proposed on 5 July but she did not respond to his objections to Ms Fagg. On 30 June 2007 the claimant wrote to Miss Ranzen stating that he had decided not to attend at the appeal because he did not think he would be given a fair hearing and also he had "no wish to sit in London and listen to Simon Gillespie".

The appeal was heard and dismissed in the claimant's absence. Mr Gillespie attended to present the respondent society's case. Ms Rantzen and Ms Fagg are both recorded as asking him a number of questions. It appears that Mr Gillespie tried to refer the appeal panel to the claimant's letter of 3 January 2007 and a handwritten note, but Ms Rantzen refused to take this evidence into consideration. The claimant's dismissal on grounds of gross misconduct was upheld by the appeal panel which found "strong evidence to support instances cited that the claimant deliberately misled management of the MS Society of Great Britain, failed to co-operate with the parent charity and encouraged others not to co-operate, failed to exercise an appropriate level of the skill and care in the financial management of MS Society Northern Ireland and that he played an inappropriate role in the removal of a charity Trustee." At the hearing Ms Rantzen told the tribunal that in relation to FSB her decision was influenced by her understanding that a cheque had been sent. Ms Rantzen told the tribunal that she did not take these into consideration. She gave evidence to the Tribunal that she was satisfied that a proper disciplinary process was followed and that in her view it had made no difference to her decision had Ms Fagg not been involved in the decision to dismiss. The claimant subsequently lodged a complaint of unfair dismissal with the Industrial Tribunal.

The tribunal heard lengthy oral submissions from the parties' representatives which are summarized as follows:

(1) For the respondent it was contended that the claimant was dismissed for reasons relating to his conduct and that Mr Gillespie was entitled to reach the conclusions that he reached in finding the claimant guilty of misconduct in view of the documentary evidence before him combined with the contradictory statements of the claimant at the disciplinary meeting and during the investigation. Mr Gillespie was entitled to conclude that the claimant had sought to mislead him as to his role in the matters which lead to his dismissal. Procedurally the dismissal was fair in that an independent investigation was carried out by Louise Simpson. Mr Gillespie was a proper person to conduct the investigation given that the complaint against him was made at a governance level and he had not been involved in the investigations of the Chairman's Committee. In relation to the appeal there was no evidence that the involvement of Ms Fagg prejudiced the process. The appeal panel was entitled to reach the finding that it did especially in view of the fact that the claimant did not attend. In any event Ms Rantzen's evidence was that the same decision would have been reached in her view had Ms Fagg not been involved. Furthermore dismissal was a reasonable sanction to impose based on the conclusions reached by Mr Gillespie.

(2) It was contended for the claimant that the disagreement about governance issues leading to the withdrawal of the delegated powers, was inextricably linked with the allegations of misconduct against the claimant and that once that decision was made, the claimant's employment was in jeopardy. There was an artificially constructed case by the respondent against the claimant to justify his dismissal. At no time had the respondent specified the allegations of bullying and harassment made against the claimant. There was no basis for the assertion that the claimant had committed MSSNI to a separate path as at all times he had carried out the decisions of the Council and Executive Committee. At the time of the alleged misconduct the claimant was employed by MSSNI and not the respondent so if there was a conflict with the national society he was bound to carry out the instructions of his employer. The claimant acted in these matters at all times with the authority of the Executive Committee. It was contended that the respondent had acted unreasonably in treating these matters as a reason for dismissing the claimant and Mr Gillespie had failed to take into account mitigating factors, such as his successes and length of service. The process followed was unfair in that Mr Gillespie should not have been involved in the disciplinary investigation because of his own involvement in events prior to the withdrawal of the delegated powers; and further that he had failed to carry out a full and proper investigation, for example he did not interview the Treasurer about allegations of financial misconduct and that the appeal process was flawed due to the involvement of Ms Fagg. It was suggested that the respondent could not in any event discipline the claimant for conduct which had arisen before the withdrawal of the delegated powers.

The Law

Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 provides "in determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show:-

(a) the reasons (or if more than one the principal reasons) for the dismissal, and

(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.

(2) A reason falls within this paragraph if it –

(b) relates to the conduct of the employee,……

Article 130 (4) provides: Where the employee has fulfilled the requirement for paragraph one, the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer-

depends on whether 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.

Article 130A (2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:

"Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure".

The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case. Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.

The tribunal considered the following case law: Foley v Post Office; HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA; Iceland Frozen Foods -v- Jones 1983 ICR17; British Homes Stores -v- Burchell 1978 IRLR 379 EAT; W Weddel and Company Limited -v- Tepper 1980 IRLR96; Sainsbury's Supermarkets v Hitt 2003 IRLR 23; Polkey -v- A E Dayton Services Limited 1987 IRLR 503; Ulsterbus Limited v Henderson 1989 IRLR 251 NICA; Trusthouse Forte (Catering) Limited v Adonis 1984 IRLR 382; LJ Sewell and J Francis v Ford Motor Co 1973 IRLR 25; W Devis & Sons Ltd v RA Atkins 1977 IRLR 314; CEX Limited v Mark Lewis 2007 UKEAT/0013/07; Software 2000 Ltd v Andrews 2007 IRLR 568 EAT.

In the Burchill case, the EAT set out the following principles:-

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question ………..entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. ……………First of all, there must be established by the employer the fact of that belief……… Secondly, that the employer had …reasonable grounds for that belief. And thirdly……….that the employer………had carried out as much investigation into the matter as was reasonable in the circumstances of the case".

The leading case on the application of Article 130(4) of the 1996 Order is Iceland Frozen Foods v Jones 1982 IRLR 439 EAT in which Browne-Wilkinson J stated that "the correct approach for the industrial tribunal to adopt in answering the question posed by [article 130(4) of the Order] is as follows:-

i.the starting point should always be the words of [article 130 (4)] themselves

in applying the section an industrial tribunal must consider the reasonableness

of the employer's conduct, not simply whether they consider the dismissal to be

fair;

in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

in many, though not all cases where there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;

(iv) 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. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair."

In the case of Sainsbury's Supermarkets Ltd v Hitt 2003 IRLR 23, the Court of Appeal stated that it was not for the tribunal to substitute its own view for that of the employer. The Court of Appeal stated as follows:-

"The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason".

Conclusions

The tribunal was satisfied, and it was not disputed, that the respondent had complied with the statutory dismissal procedures. Therefore it went on to consider the fairness or otherwise of the claimant's dismissal pursuant to Articles 130 and 130(A) of the 1996 Order as amended.

The tribunal heard extensive evidence in relation to the relationships between the respondent and MSSNI prior to the withdrawal of the delegated powers and the tribunal did consider that the governance issues were closely intertwined with the allegations of gross misconduct raised against the claimant. However the tribunal was clear that it was not concerned with the issue as to whether the Board acted ultra vires the respondent's constitution in deciding to withdraw the delegated powers. Rather it was required to focus on whether the claimant's dismissal was fair or unfair in accordance with the provisions of the 1996 Order. At the outset of its deliberations on this point, the tribunal considered the claimant's contention that the respondent was not entitled to discipline the claimant in relation to alleged misconduct which occurred prior to the withdrawal of delegated powers and at a time when he was directly line managed by Mrs Byrne. The tribunal accepted the submissions of Mr Jaquiss on this point and took into account the constitutional relationship between the respondent and MSSNI. MSSNI was not separate and autonomous from but was a constituent part of the respondent society. The Northern Ireland Council through the MSSNI exercised powers delegated to it, including the power to employ the claimant on behalf of the respondent's Board. The claimant continued in the same employment after the withdrawal of the delegated powers, albeit that the constitutional change inevitably necessitated a change in his line management. In these circumstances the tribunal is satisfied that the respondent was entitled to investigate and instigate the disciplinary process into matters which had arisen prior to the revocation of the devolved powers.

The tribunal was satisfied that the respondent had established that the reasons for the claimant's dismissal were related to his conduct and that his dismissal was therefore for a potentially fair reason.

The tribunal then considered, having regard to the reason shown by the respondent, whether the dismissal was fair or unfair as described in Article 130(4) and in accordance with the principles set out in Burchill. The tribunal had to determine whether the respondent had a genuinely held belief that the claimant was guilty of misconduct in relation to the matters set out in Mr Gillespie's report on his findings and decisions and the letter of dismissal. The tribunal took into consideration that Mr Gillespie had discounted the claimant's irregular attendance at Board meetings, the change of date of the 2006 AGM, CRB checks, the process leading to the appointment of Gail Brown when he reached his conclusion that the claimant had committed acts of gross misconduct. Further that he considered finance matters, although serious, would not in themselves amount to gross misconduct.

Therefore the tribunal went on to determine in relation to the matters upon which he made his decision, whether Mr Gillespie did have a genuine belief and whether he had a reasonable basis for the belief that the claimant was guilty of gross misconduct. The tribunal concluded that the documentary evidence coupled with the claimant's explanations at the investigatory and disciplinary hearings supported Mr Gillespie's belief that the claimant made the decision that MSSNI should join FSB contrary to the decision of the Board. The correspondence and documentation sent by Ms Kinney to FSB was evidence that an application had been made for membership and not simply an expression of interest. The claimant's written comment on the cover sheet to the Board paper demonstrated the claimant's disagreement with the decision of the Board. His failure to mention this at subsequent teleconferences of the senior management team was inconsistent with his contention that he understood that there was to be further consultation on this matter. It is clear that Mr Gillespie took into account that there is no record of any discussion about joining the FSB at meetings of the Executive and Council until 1 November 2006 when the claimant introduced the issue. Neither the claimant nor Ms Kinney disclosed to the Council that an application had already been submitted. Mr Gillespie did not accept the explanations given by the claimant about these matters and the tribunal considered that he did not act unreasonably in doing this. The tribunal considered that Mr Gillespie was entitled to give little weight to fact that the registration fee was not paid in view of Ms Kinney's clear understanding that MSSNI had become a registered member. The tribunal did not find the claimant's evidence to be credible in relation to these matters. The tribunal took into account Mrs Byrne's evidence that she had been unaware that the application forms had been submitted. Furthermore there was a conflict between the claimant and his witnesses as to when the decision had been made and whether that decision was to make an application or simply to register an interest in joining. The claimant's explanation for not raising an objection to the Board's decision was that he had previously been instructed only to speak in relation to matters that had direct bearing on Northern Ireland issues. The tribunal considered that if the Northern Ireland Council or Executive had previously been discussing membership of the FSB, then this was such a matter, and therefore it did not accept this explanation.

In relation to the MS nurse/Serono, the tribunal considered that there was evidence that the claimant was aware, at least from July 2006, that applications for funding were to be processed through the Fast Track scheme. Documentation shows that the claimant authorized Ms Kinney to sign an agreement with Serono even though it was drawn to his attention that there was an objection by one of the partners in the scheme. Mr Gillespie did not accept the claimant's explanation that the correspondence sent to Serono regarding the constitutional relationship was simply to clarify that MSSNI did not rely on the respondent for funding. The tribunal considered that this contradicted the explanation given to Mr Gillespie that he was unclear about the application of the scheme during the disciplinary interview. The tribunal concluded that Mr Gillespie did have reasonable grounds upon which to base his belief the claimant deliberately attempted to mislead Serono and that one consequence of this was to delay the delivery of funding for an MS nurse to the disadvantage of people in Northern Ireland with MS. Similarly the tribunal considered that the conclusion reached by Mr Gillespie that claimant's statement to Brightwater recruitment was a further example that the claimant gave a misleading impression to a third party was one that he was entitled to reach on the basis of the documentary evidence before him and in light of the claimant's explanations.

The tribunal examined Mr Gillespie's findings concerning the conduct of the claimant towards the Northern Ireland trustee. His findings were that the claimant had failed to ensure that the Trustee's complaint of bullying and harassment had been dealt with appropriately; his personal conduct towards the trustee was in breach of the Code of Conduct; and that he failed to ensure that a proper procedure had been used in the purported removal of the trustee. The tribunal considered that Mrs Crossley (although reference was made to bullying and harassment in her correspondence to Mrs Byrne and the claimant was aware of that correspondence), had actually raised her complaint with Mr Kennan as the Chairman of the Board of Trustees. Her complaint to Mr Kennan and the Chairman's Committee was about her treatment by Mrs Byrne and the claimant. Therefore the tribunal considers that it would have been inappropriate for the claimant to become involved in the process of the investigation of the complaint and that it was the responsibility of the Board to establish the process for establishing the precise nature of her complaint and then the investigation process. In this respect the tribunal did not find Mr Gillespie's conclusion was one that he could have reasonably reached on the evidence before him.

However the tribunal considers that the further allegations concerning the claimant's conduct during the process of the removal of Mrs Crossley were capable of being treated as separate instances of gross misconduct. These matters were identified to the claimant in advance of the disciplinary hearing and he had the opportunity of addressing them during the course of the investigation by Louise Simpson and the disciplinary interview. The tribunal notes that Mr Gillespie did not make any finding that the claimant had bullied and harassed the Northern Ireland trustee. The tribunal was satisfied that there was evidence to support Mr Gillespie's conclusion that the claimant disagreed with the views of Mrs Crossley, both in relation to the holding of a Board meeting in Belfast and in relation to the FSB membership. The documentation shows that the claimant was openly critical of the trustee in front of staff on the basis that she had failed to reflect the views of the Northern Ireland officers and Services team on these issues. The tribunal notes that there was no record that these matters were previously discussed at meetings of the Executive prior to 3 August 2006. The tribunal did not find credible evidence that there had been widespread discussion at every level within MSSNI from January 2006 onwards that it would be too costly to hold a board meeting in Northern Ireland. There was clear evidence that the claimant strongly disagreed with both the holding of a Board meeting in Northern Ireland and that there should be one national membership of the FSB. The tribunal considered that the documentation supported the proposition that the claimant in his role of line manager had permitted staff members openly to criticize Mrs Crossley in her role of trustee. The tribunal considered that it was manifestly inappropriate for members of staff to be present at Executive and Council meetings when the trustee's position was being discussed and that the claimant in his position of Director should have advised the Officers accordingly. The tribunal considered that the evidence supported the contention that the claimant did have considerable influence over the decisions of the Northern Ireland officers. Further the tribunal considered that the documentary evidence and the claimant's own statements at the disciplinary hearing supported Mr Gillespie's conclusion that the claimant did not provide correct information and advice as to the constitutional requirements concerning the removal of the trustee and in the passing of the votes of no confidence. The minutes of meetings of the Executive Committee and Council supported the view that the claimant had reported incorrectly what Mrs Crossley said at the Board meeting and that this had caused him embarrassment. The documentation available at the disciplinary meeting supported the view that the claimant had informed the Executive Committee that the failure of the trustee to meet with Mrs Byrne had caused a breakdown in the relationship between the trustee and the Services Team. The tribunal accepted that these matters were capable of suggesting to Mr Gillespie that the claimant drove the process leading to the removal of the trustee and that in doing so he breached the Code of Conduct.

The tribunal did consider that there was sufficient evidence at the date of dismissal that the claimant was responsible for the decision to withdraw cooperation between MSSNI and the national society. The tribunal was mindful that at the time of dismissal Mr Gillespie did not have in his possession the letter drafted by the claimant on 3January 2007 or the email sent to the claimant by Gail Brown at the end of January 2006. Both of these items suggested to the tribunal that the claimant was involved in the decision to withdraw cooperation with the respondent society. The tribunal took into account that there was no record as to when the decision was taken other than the letter sent by the Northern Ireland officers on 5 January 2006. This was clearly in response to the claimant's reaction to the emails sent by Mr Gillespie as reported by him to the officers. Furthermore the tribunal considered that there was evidence to support Mr Gillespie's view that the claimant displayed an antagonistic attitude towards the respondent society and his conclusion that in relation to this and other matters the claimant had committed MSSNI to a separate path from the respondent society.

The tribunal concluded on the basis of the facts found that the claimant did not always, as was contended on his behalf, make key decisions with the authority of the Northern Ireland governance bodies. However the tribunal did consider that the evidence available suggested that the claimant acted with regard to the appointment of auditors, although not in accordance with the MSSNI constitution, were authorized by the Executive Committee. Therefore the tribunal considered that this matter should have been treated by Mr Gillespie as falling within the same category as the other financial matters. Nevertheless the tribunal was satisfied that Mr Gillespie, taking into account each of the other instances referred to above, had a genuine and reasonably held belief that the claimant was guilty of gross misconduct.

The tribunal is satisfied in the circumstances that the decision to dismiss the claimant did fall within the band of reasonable responses that a reasonable employer might have adopted, and was mindful that it is not for the tribunal to substitute its own view of what a reasonable course might have been. The tribunal accepted that Mr Gillespie did take into consideration mitigating factors including the claimant's previous service. It agreed with Mr Gillespie's assessment that the fact that the claimant had the support of the Northern Ireland officers did not support him from responsibility. The tribunal accepted that Mr Gillespie did consider whether the claimant could be given another role or be monitored in some way in the role of director. The tribunal considered that neither of these options was feasible as trust and confidence had been lost in the claimant as an employee. The tribunal did not accept that there was a manufactured case against the claimant or that his dismissal was a foregone conclusion.

The tribunal went on to consider whether the respondent had carried out as much investigation as was reasonable in the circumstances. The tribunal considered that the seriousness of the charges against the claimant did warrant his suspension pending investigation. The tribunal considered the claimant's contention that the procedure was flawed because Mr Gillespie conducted the disciplinary process. The tribunal is satisfied that safeguards were put in place by the appointment of Louise Simpson who was independent of both MSSNI and the respondent society. It is clear that Mr Gillespie acted on her recommendations. The claimant was notified of all the disciplinary charges in advance and was sent copies of all documentation relied upon in the disciplinary meeting. The tribunal considered that Mr Gillespie acted fairly in the process and ensured that the claimant was given a fair hearing. The tribunal consider that the fact that Mr Gillespie did not interview Mr Carragher prior to reaching his decision did not render the process unfair as the finance matters were not in themselves regarded as gross misconduct. The claimant confirmed in his evidence that he was given the opportunity of making all the points which he wished to make at the disciplinary hearing. The tribunal did not consider that the complaint against Mr Gillespie precluded him from being involved in the disciplinary process as it was by the officers and not the claimant. The Tribunal does not consider that it would have been practicable in all of the circumstances for anyone other than Mr Gillespie to deal with the disciplinary process.

The tribunal considered that it was not possible for the disciplinary appeals procedure in the MSSNI terms and conditions of employment to be followed in view of the revocation of the delegated powers. Under the respondent's disciplinary procedure, the claimant's appeal would normally have been dealt with by the Chairman of the Board of Trustees, possibly with additional Trustees to assist him. However, it was not mandatory for more than one person hear an appeal. The tribunal noted that Ms Rantzen was appointed to conduct the appeal because Mr Kennan accepted that it was inappropriate for him to be involved because of his previous involvement in the work of the Chairman's Committee. Therefore it was deemed necessary to engage the services of an independent person or persons to hear the appeal. Ms Rantzen's understanding was that Ms Fagg was someone who had no involvement in the decision to dismiss the claimant. While it is the case that she was not involved in the actual disciplinary process, the tribunal considered that she was present at all of the Board meetings from August 2006 which appointed, received the reports of and acted on the recommendations of the Chairman's committee. The tribunal did not accept that Ms Fagg could be regarded as an independent person and the Tribunal considers it unacceptable that Ms Rantzen did not respond or even acknowledge the claimant's objection to Ms Fagg. In this regard the tribunal did not consider that the respondent had acted within the range of reasonable responses.

Therefore the Tribunal had to determine whether it would have made any difference to the outcome of the disciplinary process had Miss Fagg not been involved in the appeal. In Software 2000 Limited v Andrews 2007 IRLR 568 the EAT held that in the [Article 130(4)] "exercise of determining whether the employer has shown that the employee would have been dismissed if the fair procedure had been followed, and the assessment of whether, instead the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel". There are five possible conclusions that a tribunal may reach accordingly to Mr Justice Elias. First, the evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction. Secondly, the employer may show that if fair procedures had been complied with the dismissal would have occurred in any event. The dismissal would then be fair in accordance with Article 130(a). Thirdly the tribunal may decide that there was a chance of dismissal but it was less than 50% in which case compensation should be reduced in accordance with the Polkey principles. Fourthly the tribunal may decide that employment may have continued, but only for a limited period. Finally the Tribunal may decide that the employment may have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

The tribunal considered Ms Rantzen's evidence to the tribunal that it would have made a difference to the outcome and took into account that the claimant's grounds of appeal consist of a denial of the charges of gross misconduct. The tribunal considered that there was a possibility that the claimant may not have attended the appeal hearing in any event because by that time he had already secured alternative employment and he had stated that he did not wish to listen to Mr Gillespie. The tribunal considers that there is a 51% or more likelihood, even had the claimant decided to attend the hearing, that the claimant's appeal would not have been upheld, given the strength of the documentary evidence which supports the allegations made against him and the unsatisfactory explanations which were advanced by the claimant both at the disciplinary hearing and the hearing of this complaint. Therefore it follows that the dismissal of the claimant is fair in accordance with Article 130(A) of the 1996 Order.

Accordingly, the tribunal finds that the claimant's claim of unfair dismissal is not well founded and his claim is dismissed.

Chairman:

Dates and place of hearing: 14-25 April 2008; 1-2 May 2008; 6 May 2008; 28-30 May 2008;

4-5 June 2008 at Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Harris v The Multiple Sclerosis Society... [2008] NIIT 1476_07IT (14 October 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1476_07IT.html Cite as: [2008] NIIT 1476_7IT, [2008] NIIT 1476_07IT