THE INDUSTRIAL TRIBUNALS

CASE REF:	7266/09

CLAIMANT:			Frank Cunningham

RESPONDENT:		Brinks (Ireland) Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed but the tribunal deducted 30% from the claimant’s compensatory award to reflect the likelihood that the claimant would not have been dismissed if as much investigation as was reasonable in all the circumstances of the case had been carried out by the respondent.

The claimant’s claim for age discrimination was withdrawn on the morning of the hearing without objection from the respondent and without any order for costs.

Constitution of Tribunal:

Chairman:			Ms W A Crooke
Members:			Mr J Hall
				Mr M Grant

Appearances:	

Mr J Kennedy, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors appeared on behalf of the claimant 

Mr T Sheridan of Peninsula Business Services appeared on behalf of the respondent.

Sources of Evidence

The claimant gave evidence on his own behalf and Mr Joe Jordan and Mr Gareth Glynn, former employees of the company also gave evidence for him.

Mr Seamus Cullen and Ms Lindsay Tully gave evidence on behalf of the respondent.

An agreed bundle of documents was before the tribunal.

Preliminary Matters

The notice of hearing described the respondent as Brinks Allied Ltd.  It was explained that there had been a takeover, a buyout, and that the appropriate respondent was now Brinks (Ireland) Ltd.  Accordingly, the tribunal changed the name of the respondent.

The Claim and the Defence

The claimant claimed that he had been unfairly dismissed and that he had been discriminated against on account of his age.  The respondent claimed that the claimant was not unfairly dismissed but dismissed by reason of his conduct and the claimant had not been discriminated against on account of his age.

The Relevant Law

The relevant law is found in Article 130 of the Employment Rights (NI) Order 1996.

In reaching its decision the tribunal also had regard to the cases of British Home Stores Ltd v and Burchell [1978] IRLR379 and the case of Iceland Frozen Foods Ltd   v  Jones [1983] ICR17.

The Facts Found

1.	The claimant was employed by the respondent as a frontline maintenance operative and at the date of his dismissal had eight completed years of service.  The claimant had previously worked as part of the respondent’s cash in transit service and in 2004 had been subjected to a robbery in the Royal Group of Hospitals, during which he was shot at twice but did not suffer injury as the gun did not discharge, and in April 2005, the claimant was involved in a “tiger” kidnap.  The essence of a “tiger” kidnap is that a member of the victim’s family will be seized and held and the victim (in this case, one of the operatives in the team led by the claimant) will be required to deliver a sum of money to a location.  During the course of this experience, the claimant was informed by his co-worker that two bullets had been presented to him, one of which was destined for the claimant.

Additionally, the claimant was shown photographic evidence that his dwelling had been identified.  Members of his family had also been followed.  The claimant as a result of this set of experiences was absent from work for approximately 10 months, only returning to work on 15 February 2006.  To facilitate the return to work of persons like the claimant, the respondent employer will do a significant amount.  For example, in the case of the claimant, they paid for him to receive counselling and Mr Gareth Glynn (the then General Manager of the company), Ms Nicola Powderly (an external HR Consultant), and Mr Patrick George variously met with the claimant at his house.  Eventually, it was agreed that the claimant would be returned to work in a less risky environment, taking him away from money.  At the point of return in February 2006, he was to work in the command centre in Mallusk.  When the respondent company pulled out of the command centre, the claimant was tasked to work in the control room of the premises of the respondent at Duncrue Road, Belfast, from 7.00 am to 9.00 am per day, and was to spend the rest of his working hours, up until 4.00 pm per day working as a frontline maintenance operative.  This means basically that he repaired broken automatic teller machines.

2.	On 13 May 2009, in accordance with company policy, the claimant refused entry to the Duncrue Road premises to Nuala Kelly, the current Human Resources Manager, as she did not produce the necessary identification evidence.  The claimant considered that this had angered Ms Kelly and the claimant was asked and attended a meeting on 14 May 2009 with Gary Wilsden, his then Line Manager.  The purpose of the meeting was to discuss the claimant’s absence on a Bank Holiday, on 4 May 2009.  At that meeting, the claimant said that he had informed Gary Sinclair, another manager, that he was going to Donegal for the weekend at a chance meeting in the respondent’s premises around 4.30 pm on 1 May 2009.  The respondent did not accept that the meeting of 1 May 2009 actually took place.  They contended that the claimant had telephoned and spoken to Gary Sinclair on 30 April 2009 asking if Monday (as a Bank Holiday) was to be worked.  The respondent’s witnesses alleged that Gary Sinclair said that it was.  The tribunal prefers the version of events given by the claimant as it was particularly clear and detailed.  If the respondent really believed that the telephone conversation had taken place, we consider that they would have produced telephone records on their
	own account or pursued this matter vigorously in discovery with the claimant.  The notes of the investigatory meeting also showed that the claimant was reluctant to work Bank Holidays because the previously favourable terms of being paid 
double-time had been removed from the contract of the workforce due to the significant downturn in business.

3.	By a letter dated 15 May 2009, the claimant was invited to a disciplinary meeting.  He was advised of the charge and that “the outcome could result in disciplinary action up to and including a final written warning”.

4.	The claimant raised a grievance by letter dated 19 May 2009 and attended a grievance hearing on 10 June 2009 which was chaired by Seamus Cullen with Nuala Kelly in attendance.  By a letter dated 22 June 2009 the claimant was informed of the conclusions of the grievance hearing and appealed the finding under cover of a letter dated 25 June 2009.  By letter dated 10 July 2009, the claimant was invited to attend a grievance appeal hearing with Lindsay Tully (Operations Manager Ireland) on 15 July 2009.  The claimant attended this meeting and was informed of the outcome by letter dated 2 September 2009 which stated that there were not “sufficient grounds to substantiate” the grievance.

	The claimant attended a disciplinary meeting on 21 May 2009 with Seamus Cullen, (Operations Manager) and Nuala Kelly.  At that stage, the respondent considered that the matter in question  -  a failure to work on the bank holiday, was a low grade disciplinary offence.  However, matters took a different turn when the claimant said that he had a letter from Gareth Glynn, the previous General Manager, which said that he did not have to work at weekends or on bank holidays unless this was by mutual agreement, although the tribunal noted that the claimant made no mention of this in the investigatory meeting.  Sometime later, the claimant provided a copy of this letter dated 31 January 2006 to Seamus Cullen.

5.	On 15 July 2009, at 4.00 pm, the claimant was orally invited to a meeting with Nuala Kelly and Seamus Cullen.  The claimant was given no notice of the meeting.  The claimant was informed at this meeting that he was suspended from his employment on full pay.  The claimant was informed he could not be told the reason for his suspension but that it would be confirmed by a letter.

6.	By letter dated 16 July 2009, the claimant was informed he had been suspended ““on full pay” with immediate effect to allow an investigation to take place into allegations that…[he had]… deliberately provided false and inaccurate information and documentation to support…[his]…claim that…[he was not]…required to work bank holidays”.

7.	The respondent had a number of difficulties with the letter of 31 January 2006.  Its font size and layout were different to settings previously used by Mr Glynn.  There was a spelling mistake in the motto at the head of the page  -  “Armoured Cars” was spelt “Amoured Cars”.  Under the name of Mr Gareth Glynn at the foot of the letter appeared a cell number.  This caused particular difficulty to Mr Cullen as this was terminology that was not in use and not the normal way that Mr Glynn finished his letters.  Apart from these points which we would consider go to “style”, there was also a mistake in the letter.  There was reference in the letter to a meeting taking place with Gareth Glynn and Nicola Powderly.  By speaking to Nicola Powderly, Mr Cullen and Ms Kelly ascertained that the meeting did not take place on that day.  Furthermore, when considering the claimant’s personnel file as a whole, it was noted that this was the only letter that did not appear in the file and that it did not fit into the sequence of letters sent by Mr Gareth Glynn to the claimant in and around that period, ie (January, February 2006).

8.	At that time, it was not open to the staff of the respondent to speak to Mr Gareth Glynn.  In or around March 2009, Mr Glynn had been placed on “gardening leave”.  Although it was a feature of the evidence on the part of the respondent that it was part of the respondent’s “code of ethics” which prevented them speaking directly to Mr Glynn, it became apparent to the tribunal upon further questioning, that the respondent considered itself in dispute with Mr Glynn and were reluctant to speak to him as that dispute might have escalated into litigation.  We do not consider that it is necessary for us to make any finding as to whether the dispute did escalate into litigation, because when a senior person leaves the company and goes to a rival in the same area of business, there is a strong likelihood that disputes escalating into litigation can arise and the possibility of such a situation arising is sufficient to make it almost impossible for the respondent managers to speak to their former colleague.

9.	The tribunal also noted that Mr Cullen and Ms Tully did not make any attempt to speak to Mr Jordan, who had been the Line Manager of the claimant and who was absent on sickness leave.  The reason given for this failure was that the respondent did not want to bother Mr Jordan when he was sick.  Mr Jordan’s evidence to the tribunal was that members of the respondent did telephone him for various reasons during his sickness absence.  For example, he was telephoned on two occasions about taking a polygraph test.  Moreover, Mr Jordan, as the claimant’s Line Manager, had full knowledge of the claimant’s working arrangements and could have confirmed that the claimant was entitled to consider that he did not have to work Bank Holidays.  Whilst the tribunal can accept that it was not open for the respondent to speak to Mr Glynn, the tribunal does not accept that the respondent could not have spoken to Mr Jordan.  It would have been reasonable to make the enquiries from him about the claimant’s working arrangements.  Mr Jordan’s sickness did not stop the respondent requiring him to take a polygraph test.  Mr Cullen and Ms Tully could have spoken to Mr Jordan.

10.	The claimant attended a disciplinary hearing on 22 July 2009 with Seamus Cullen and Nuala Kelly.

11.	The claimant was informed by letter dated 24 July 2009 that the outcome of the disciplinary hearing was that his actions amounted to gross misconduct and he was similarly dismissed from his employment without notice or pay in lieu of notice.

12.	By letter dated 29 July 2009 the claimant appealed the decision to similarly dismiss him from his employment, and set out the grounds for appeal.

13.	The appeal meeting took place on 17 August 2009 and was chaired by Ms Lindsay Tully.  During the meeting, she informed the claimant that it would make a difference to his situation if he could provide confirmation from Mr Gareth Glynn that he was the author of the letter, of 31 January 2006.  The claimant did provide such a letter from Mr Glynn stating that the letter dated 31 January 2006 was “an exact copy of the letter that I sent to Mr Cunningham in my previous role as general manager for Brinks in Northern Ireland”.

14.	Despite this, by letter dated 21 August 2009 the claimant was informed that the decision to dismiss him was upheld and his appeal was rejected.  It was clear to the tribunal from her evidence that Ms Tully approached the hearing of the appeal in a very fair minded way.  It appeared to the tribunal that after the hearing of the appeal and before the outcome letter was given, she was caused to change her approach,  to the extent that nothing Mr Glynn said or did or wrote would have had any effect on her decision.  The tribunal draws the inference from the evidence that this was because of the ongoing commercial dispute situation that the respondent had with Mr Glynn.

15.	By letter dated 18 September 2009, the claimant lodged a grievance with the respondent stating that he believed he had been unfairly dismissed from his employment and that the respondent had breached his contract of employment.  The claimant also claimed that he had been discriminated against on the grounds of his age.

16.	Mr Seamus Cullen replied to the grievance letter by letter dated 24 September 2009 stating that the claimant have exercised his right of appeal under the statutory modified grievance procedure and that this “decision was final”.

17.	There was no evidence before the tribunal that the claimant would have been capable of writing the letter of 31 January 2006 or in any way producing it.  The claimant knew how to run his control room computer programme, and the respondent did not establish in evidence that the claimant had any other form of computer knowledge that was sufficient to produce the letter and digitally sign it with Mr Glynn’s name.

18.	The statutory dispute resolution procedure was concluded.

Conclusions

19.	The starting point for a consideration of the fairness or otherwise of a dismissal is to consider the well-known decision in British Home Stores Ltd v Burchell [1978] IRLR379 which says:-

	“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 [usually, though not necessarily, dishonest conduct], entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.”

20.	Did this take place in this case?  There was an interesting situation of an employee being accused of a fairly low grade disciplinary offence, who then was accused of a very serious offence of falsification of documents arising out of his attempts to defend himself against the first low grade disciplinary offence (which procedure was effectively abandoned by the employer once it took up this allegation of falsification of documents).  We consider that Mr Cullen did believe that the claimant was guilty of falsification of the letter of 31 January 2006.  His position was that he had never heard of anybody in the whole company receiving such favourable terms of employment.

	Did Mr Cullen have in his mind reasonable grounds upon which to sustain that belief?

	Whilst we accept that there was a significant number of stylistic errors in the letter and indeed errors of fact about the date of the meeting, which could render a reasonable employer suspicious about the provenance of the letter, we do not consider that Mr Cullen was reasonable in his belief that the claimant produced the letter.  In the minutes of the grievance, disciplinary and appeal meetings there was very little reference to how the allegedly falsified letter was actually produced by the claimant and digitally signed with Mr Glynn’s signature.  There was little evidence to show why this belief about the claimant’s abilities to produce the letter was actually held.  Therefore, while we consider that it was reasonable for Mr Cullen to be sceptical about the letter, we do not consider that it was reasonable of him to consider that it was the claimant who produced it.

	Was there as much investigation into the matter as was reasonable in all the circumstances of the case?

	We do not fault the respondent for its reluctance to go back to Mr Glynn in the overall circumstances against which the claimant’s situation took place.  However, we do not consider that there was sufficient investigation on the part of the respondent to check whether Nicola Powderly attended the meeting that was alleged to have taken place in the letter.  We consider that it would have been reasonable to have made enquiries with Mr Joe Jordan, who after all, as the claimant’s line manager, had full knowledge of the claimant’s working arrangements.  While Mr Jordan was not the originator of the letter of 31 January 2006, he was the enforcer of the terms and conditions set out therein.  If he had confirmed to the respondent that these were indeed the claimant’s working conditions, we consider that there was a reasonable chance that the claimant would not have lost his job.  Having balanced the stylistic errors in the letter with Ms Powderly’s confirmation that she did not attend the meeting on 31 January 2006 against the evidence that Mr Jordan could have given to the employer that the Points One to Nine in the disputed letter were in fact a correct representation of the claimant’s terms and conditions of employment we consider that there was a 30% likelihood that the claimant would have been dismissed anyway and that his dismissal was unfair but that his compensatory award should be subject to a 30% reduction to reflect the chance of dismissal.

21.	We have also considered the dictum of Mr Justice Browne-Wilkinson in the case of Iceland Frozen Foods Ltd  v  Jones [1983] ICR17:-

	“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach of the industrial tribunal to adopt in answering the question posed by Section 57 (3) of the [Employment Protection Consolidation Act (1978)] is as follows:-

	(1)	the starting point should always be the words of Section 57 (3) themselves;

	(2)	in applying the section the industrial tribunal must consider the reasonableness of the employers conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

	(3)	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;

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

	(5)	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.”

	We consider that in this case a reasonable enquiry was not made  -  enquiring from Mr Joe Jordan as to what he could say about the claimant’s working arrangements.  Therefore, we do not consider that the employer has acted reasonably in this case.  Furthermore, as already stated, we consider that if this enquiry had been made, there would have been a reasonable likelihood that the claimant would not have lost his job and we assess that percentage likelihood as being 70%.  Therefore, we will be deducting 30% from the compensatory award.

22.	Assessment of Compensation

	At the time of termination of employment the claimant was in receipt of £381.77 per week being the average of four months pay before the date of dismissal.  His age at dismissal was 58 years and he had 8 completed years of service with the respondent.

Basic Award

23.	Given these factors, the compensation computation will involve a multiple of 1.5 and the award is calculated as follows:-

8 x 1.5 x £350.00	(being the applicable statutory
maximum at the date of dismissal)	=	£4,200.00	

Compensatory Award

24.	The period from 24 July 2009 to the date of hearing being 24 May 2010 is 43 weeks.  Accordingly, his immediate loss is calculated as follows:-

43 x £309.57	=	£13,311.51	

Post Dismissal Receipts

25.
One week at £90.00 starting from 17 May 2010.		£13,311.51	
	-	£       90.00	
		£13,221.51	

	The claimant has started to work part-time with his wife and he is able to earn the amount of £90.00 without affecting his benefits.  

	The period to which the prescribed element relates therefore starts on 24 July 2009 and continues on to 24 May 2010 and during this time the claimant received Employment Support Allowance in the sum of £64.30 per week, therefore, his total compensatory award is:-
		                    	£13,221.51

	Less 30%: (£3,966.45)

	Net compensatory award:					-	             £3,966.45
										            ________
										             £9,255.06

	The prescribed element is						             £9,255.06

Loss of Statutory Rights

26.	This was assessed by the tribunal at £300.00.

Future Loss

27.	The tribunal considers that it will take 26 weeks for the claimant to have an opportunity to realistically obtain a job of equal status and earning power to that which he lost.  Therefore his compensation is computed as follows:-

26 x £309.57	=	£8,048.82	
Deduct earnings at £90.00 per week.
26 weeks x £90.00 (= £2,340.00) 	

			
	-	£2,340.00	
	=	£5,708.82	

Summary of Compensation

Basic award:			£ 4,200.00	
Nett Compensatory Award 
Immediate Loss:			
£ 9,255.06	
Loss of Statutory Rights:

Less 30%	£     300.00
£       90.00	
-		
			£    210.00	
Future Loss	£  5,708.82			
Less 30% (£1,712.65)	£  1,712.65		-		
			£  3,996.18	
Total Compensation after 30% deduction		=	£17,661.24	

28.    The Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this decision.  Your attention is drawn to the notice below which forms part of the decision of the tribunal   

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

Chairman:

Date and place of hearing: 24-27 May 2010, Belfast

Date decision recorded in register and issued to parties:

Case Ref No:	7266/09it

CLAIMANT:		Frank Cunningham 

RESPONDENT:	          Brinks (Ireland) Ltd 

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	17661.23	
(b)  Prescribed element	9,255.06	
(c)  Period to which (b) relates:	  24/07/09 – 24/05/10	
(d)  Excess of (a) over (b)	8406.17	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.