THE INDUSTRIAL TRIBUNALS

CASE REF:  06949/09

CLAIMANT:			Sandra Cleland

RESPONDENTS:		1.  Shelbourne Motors Ltd
				2.  Paul Ward

DECISION
The unanimous decision of the tribunal at an early stage in the hearing was that the claim against the second-named respondent was dismissed for want of jurisdiction and the hearing continued in relation to the claim against the first-named respondent only.  The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claim against the first-named respondent is also dismissed.  

Constitution of Tribunal:
Chairman:		Mr N Kelly
Panel Members:	Mr J McKeown
			Mrs V Walker

Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr A Ferguson, of Personnel & Training Services.

THE ISSUE

(1)	The claim form had been completed by the claimant without legal assistance.  It referred to a claim of unfair dismissal and “unacceptable behaviour”.  The claimant alleged that she had suffered distress, intimidation and unacceptable behaviour from Mr Paul Ward, a director of the first-named respondent (“the respondent”), during a meeting on 24 July 2009 which had been held to discuss the claimant’s grievances about her employment.  The claim form did not allege that there had been unlawful discrimination on any of the prohibited grounds.  The claimant, at the commencement of the hearing, was asked to outline her claim and it became clear that she was simply alleging that a grievance which she had lodged, alleging that she had been bullied by Mr Paul Ward, was the real reason for her dismissal and not, as alleged by the respondent, misconduct on her part.  

(2)	The issue therefore to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996.  

(3)	An unfair dismissal claim can only be brought against the employer of the claimant. The second-named respondent was never, at any stage, the claimant’s employer.  The claim against the second-named respondent is therefore dismissed.  

RELEVANT FINDINGS OF FACT

(4)	The respondent is a small family owned business selling motor vehicles from a multi-franchise site in Portadown.

(5)	The claimant was employed by the respondent from 16 June 2008 to 5 August 2009 as a parts delivery driver.  Her duties were to deliver parts from the Portadown site to various customers within Northern Ireland.

(6)	In July 2009, Mr Ward was told by one of the other drivers employed by the respondent that the claimant wasn’t happy at work.  

(7)	Mr Ward set up an informal meeting with the claimant to see what was going on.  Miss Karen McCabe, a Human Resources Officer employed by the respondent, also attended the meeting which took place on 24 July 2009.

(8)	It is common case that the claimant became upset during this meeting.  Mr Ward and Miss McCabe both state that the claimant only became upset when she was recounting a list of complaints about her colleagues.  The claimant stated that Mr Ward lost control of the meeting, reduced her to tears, and acted in an intimidating, aggressive and unacceptable manner.  

(9)	The meeting concluded with Mr Ward deciding that the claimant’s grievances should be referred to Personnel & Training Services (“PTS”), a human resources consultancy retained by the respondent, for investigation.  The claimant was told to put her grievances formally in writing.

(10)	The claimant did so on 27 July 2009 in a ten page document in which she complained about two colleagues in relation to various incidents and about Mr Ward in relation to the meeting on 24 July 2009.

(11)	The grievance was investigated by Ms Denise McIlwaine of PTS.  She interviewed the claimant and other relevant staff.  The claimant confirmed that her complaints were not related to gender, race, religious belief, political opinion or disability and were of “bullying more than anything”.  The grievance was not upheld for the most part and the claimant appealed against that decision on 18 August 2009.  The grievance appeal was heard on 25 August 2009 and the appeal was dismissed on 31 August 2009.

(12)	While this grievance procedure was ongoing, a separate disciplinary procedure commenced which led to the claimant’s dismissal on 5 August 2009.  

(13)	At 9.15a.m. on 31 July 2007, Mr Oliver Mallon, the respondent’s manager in the Toyota franchise, telephoned Mr Ward to inform him that the claimant smelt of alcohol.  It is significant that the claimant accepted in evidence that Mr Mallon had been on good terms with her and had in fact comforted her when he saw that she was upset after the meeting on 24 July.  He did not however know, when he telephoned Mr Ward on 31 July, that the claimant had lodged a grievance against Mr Ward and other colleagues.  The tribunal accepts that Mr Mallon’s only motive in telephoning Mr Ward was his concern about the health and safety implications of a driver smelling of alcohol.  

(14)	Mr Ward informed Miss McCabe, the Human Resources Officer. She was uncertain about what she should do in these circumstances.  She decided that she needed another opinion on whether or not the claimant smelt of alcohol before she did anything further.  She arranged for Mrs Caroline Willis, the Managing Director of the respondent, to speak to the claimant at approximately 9.30am to see if Mrs Willis could confirm the smell of alcohol.  

(15)	Mrs Willis spoke to the claimant in the Parts Department of the Renault franchise and confirmed that there was in fact a noticeable smell of alcohol on the claimant’s breath.

(16)	Mrs Willis then telephoned Miss McCabe and confirmed what Mr Mallon had initially reported.  Miss McCabe asked the claimant to come to her office and told her that two managers had reported that she smelt of alcohol.  She asked the claimant if she could smell her breath.  Miss McCabe did so and confirmed that the claimant did smell strongly of alcohol.  The claimant stated that she had had two glasses of red wine on the previous evening.  Miss McCabe suspended her on full pay pending further investigation.  The claimant was advised that she could be accompanied at the forthcoming investigation meeting by a trade union representative or colleague.

(17)	The investigation meeting was held on 3 August.  The claimant attended and was unrepresented.  The meeting was conducted by Miss McCabe and Mr Geoff Devlin, another manager employed by the respondent.  The claimant argued that she had not been breathalysed by the respondent and that therefore the respondent could not prove that she had been over the limit on the morning of 31 July.  She stated that she had two glasses of wine on the previous evening.  She may not have brushed her teeth properly and that may have affected her breath.  

(18)	Miss McCabe and Mr Devlin decided to issue a disciplinary charge and that charge issued on 3 August in the following terms, inviting the claimant to a disciplinary interview on 5 August;

“That on Friday 31 July 2009, two individual managers brought to my attention the fact that you smelled strongly of alcohol.  I called you into my office at 9.50am whereby upon your entrance, I got an overpowering smell of alcohol.  When I questioned you as to whether or not you had consumed alcohol you stated that “I had two glasses last night””.

	The claimant was also advised in that letter of her right to be accompanied at the disciplinary interview by a trade union representative or colleague and she was provided with a copy of the respondent’s disciplinary procedure.

(19)	The interview was conducted by Miss McCabe and Mr Devlin.  At the disciplinary interview, the claimant again argued that the respondent could not prove that she had been over the limit or that she had been intoxicated on 31 July.  She had not eaten breakfast that morning and stated that she had not brushed her teeth properly.  After a ten minute break, Mr Devlin and Miss McCabe told the claimant that they had concluded that she had reported to work on 31 July under the influence of alcohol and was therefore unable to work safely as a driver.  She was summarily dismissed for gross misconduct and advised of her right to appeal.  

(20)	A dismissal letter followed on the same day, 5 August, which stated;

“The Company has taken the decision to dismiss you from employment with immediate effect for “incapacity” for work induced by alcohol and “deliberately ignoring safety rules thereby endangering your own physical safety”.  The Company has reasonable belief that you turned up for work under the influence of alcohol and we therefore felt you were unfit to carry out your duties in a safe manner.

	As this is a gross misconduct offence, you are summarily dismissed and are not entitled to notice or pay in lieu of notice.  Therefore, your employment is terminated with effect from 5 August 2009.”

(21)   The claimant appealed in writing on 7 August.  The claimant argued again that she had not been intoxicated, that she had not had breakfast and had not brushed her teeth properly on 31 July.  She also argued that the underlying reason for the dismissal had been her outstanding grievance against Mr Ward and other colleagues.

(22)  The appeal was heard on 11 August by the respondent’s General Manager, Mr Paul Greenfield.  The claimant essentially raised the same arguments that she had put in her appeal letter.  The appeal was dismissed on 19 August 2009.

RELEVANT LAW

(23)	 In Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439, the Employment Appeal Tribunal determined that the function of an Industrial Tribunal in cases of this nature 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 that band, the dismissal is fair; if the dismissal falls outside that band, it is unfair.  

(24)	The Court of Appeal in Andrew James Taylor  v  OCS Group Ltd [2006] EWCA Civ 702 stated;

“The use of the words “rehearing” and “review” albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a rehearing or a mere review.  This error is avoided if Employment Tribunals realise their task is to apply the statutory test.  In doing that, they should consider the fairness of the whole disciplinary process.”

	The Court went on to say;

	“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury.  That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be.  The two impact on each other and the Employment Tribunal’s task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

(25)	Article 130 of the 1996 Order provides that the determination of the question i.e. whether the dismissal is fair or unfair, depends on whether in the circumstances [including the size of and the administrative resources of the employer’s undertaking], the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantive merits of each case.

(26)	The tribunal has a limited role in cases of this type.  It is not for the tribunal to determine whether the claimant’s breath smelt of alcohol on the morning of 31 July or whether or not the tribunal, if it had been the employer would have summarily dismissed the claimant in these circumstances.  The tribunal’s role is to determine whether or not the employer acted fairly in all the circumstances, in dismissing the claimant.  The Court of Appeal in London Ambulance Service NHS Trust  v  Simon Small [2009] EWCA Civ 220 stated, at paragraph 43 that the real question which the tribunal has to bear in mind in these circumstances, is whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.  It stated at paragraphs 44 – 46;

“(44)	I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purposes of deciding the extent to which Mr Small’s conduct contributed to his dismissal.  That was a different issue from whether the Trust unfairly dismissed Mr Small for his conduct. Contributory fault only arose for decision, if it was established that the dismissal was unfair.  The contributory fault decision was for the ET to make on the evidence that it had heard.  It was never a decision for the Trust to make.  That makes it different from the decision to dismiss, which was one for the Trust to make.  It was not the role of the ET to conduct a rehearing of facts which formed the basis of the Trust’s decision to dismiss.  The ET’s proper role was objectively to review the fairness of Mr Small’s dismissal by the Trust.

(45)	I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal.  Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the facts is that its findings about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal”.

(27)	In Santamera  v  Express Cargo Forwarding t/a IEC Ltd [2003] IRLR 273, the EAT held that;

“[Equivalent GB legislation] in the cases decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied, on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done.  In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer’s capacity and resources.  The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified, for which he, she or it may lack the means”.

(28)	In Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, the Court of Appeal held that;

“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 of 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”.

CONTENTIONS OF THE PARTIES

CONTENTIONS OF THE RESPONDENT

(29)	The respondent argued that it had heard evidence from three separate witnesses, Mr Oliver Mallon, Mrs Caroline Willis and Miss Karen McCabe to the effect that the claimant’s breath had smelt of alcohol on the morning of 31 July.  The respondent had investigated the matter in a reasonable fashion.  The disciplinary and appeal process had been fair and the claimant had been given a full opportunity to explain her position.  The respondent had formed a genuine belief that the claimant had been under the influence of alcohol and had reasonable grounds for that belief.  The claimant was employed as a driver and there were obvious risks to both the claimant and to others if she drove as part of her duties under the influence of alcohol.  In the circumstances, a reasonable employer was entitled to conclude that the claimant had been guilty of gross misconduct and to dismiss her summarily.  The respondent had clear rules in relation to alcohol and referred to paragraph 11.18 of their “General Company Policies and Rules” which stated;

“The Company wishes it to be clearly understood that the consumption of alcoholic drink, drugs, or solvent abuse by employees between starting and finishing times is prohibited.  Those permitted to drive Company vehicles must not consume alcohol or drugs, or engage in solvent abuse during working hours or on route to and from work.  Nor must they report for work in a condition unfit to drive due to these substances.

	Any incident involving an employee on duty in which it is found that the consumption/inhalation of these substances is a contributory factor or any employee deemed by management to be unfit for work due to the use of such substances will make the employee liable to dismissal.”

	Miss McCabe and Mr Greenfield had each given evidence that they had not been influenced or in any way put under pressure by Mr Ward or by anybody else to dismiss the claimant as a result of the incident on 31 July.  The decision to dismiss was entirely uninfluenced by and was separate to the grievances which had been lodged by the claimant.

CLAIMANT’S CONTENTIONS

(30)	The claimant simply argued that the dismissal was unfair.  It was not a matter of gross misconduct.  Mr Ward had been annoyed that she had complained about him. The grievance had been the real reason for her dismissal and it was a “trumped up charge”.

DECISION

(31)	The respondent has clearly complied with the statutory dismissal procedure set out in the Schedule to the Employment (Northern Ireland) Order 2003.

(32)	The first issue for the tribunal to determine is the reason for the dismissal.  The onus of proof is on the respondent in relation to this point.  The claimant has alleged that the real reason for dismissal was the grievance which she had lodged against Mr Ward and to a lesser extent other colleagues.  The tribunal has listened carefully to her evidence and to the evidence adduced by the respondent.  It accepts Mr Mallon’s evidence that he was in good terms with the claimant but that, nevertheless, he was so concerned at the smell of alcohol on the claimant’s breath that he felt obliged to notify Mr Ward.  The tribunal also accepts Mr Mallon’s evidence that at that stage, he had not known that the claimant had lodged a grievance.  The tribunal also accepts the clear and consistent evidence from the respondent’s witnesses to the effect that they had not been pressured to dismiss the claimant and that they had been in no way influenced, in their decision to dismiss, by the claimant’s existing grievance.  The tribunal therefore concludes that the reason for dismissal was conduct and not the grievance lodged by the claimant.  

(33)	The claimant was employed as a driver, delivering parts across Northern Ireland.  A reasonable employer is entitled to be seriously concerned when a driver turns up for work smelling of alcohol first thing in the morning.  While the claimant may or may not have been over the legal alcohol limit for driving on 31 July, a reasonable employer is entitled to conclude that, if a driver smells of alcohol, that driver’s ability to drive, and therefore to perform their duties, is impaired.  An employer who permitted a driver to remain at work in these circumstances would be grossly irresponsible.

(34)	The claimant made much of the fact that she had driven from the Renault franchise to another part of the site to meet Miss McCabe when she had been asked to come to her office on the morning of 31 July.  In doing so, she had gone out onto the main road from one entrance and re-entered the site at another entrance, approximately 100 yards away.  She argued that this demonstrated that the respondent had not been that worried about her ability to drive a vehicle.  The respondent’s witnesses frankly admitted that, with hindsight, they should have made sure that the claimant had not had access to the vehicle at all on 31 July and that this had been a mistake.  That said, it is clear from the evidence that this is not a very big site and that there was no particular reason for any of the respondent’s management to have believed that the claimant would have used the van to go from one building to another for the purposes of that meeting.  The distance to be covered was at most a few hundred yards.  In any event, the tribunal does not believe that this in any way advances the claimant’s case.  

(35)	The tribunal concludes that the respondent had formed a genuine belief that the claimant had been under the influence of alcohol on the morning of 31 July, that it had conducted a reasonable investigation and a fair disciplinary and appeal process.  The tribunal further concludes that, looking at all the circumstances of the case, a decision to dismiss was within the band of reasonable responses open to the respondent.  The tribunal also concludes that the respondent was entitled to regard the misconduct as gross misconduct, given the nature of the claimant’s employment as a driver.  

(36)	The claim of unfair dismissal is therefore dismissed.  

Chairman:

Date and place of hearing:   18 January 2010,  Belfast.

Date decision recorded in register and issued to parties: