THE INDUSTRIAL TRIBUNALS

CASE REF:   7483/09

CLAIMANT:	Damien Corbett

RESPONDENT:	Willstan Racing Limited t/a William Hill

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:	Mr N Kelly

Members:	Mr A Burnside
	Mr J Welsh

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Ms R Penny, Carson and McDowell Solicitors.

The Issue

(1)	The issue for the tribunal to determine is whether the claimant was unfairly dismissed by the respondent within the meaning of the Employment Rights (Northern Ireland) Order 1996.

Relevant Law

(2)	Article 130 of the 1996 Order provides:-

	“130-(1) 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 reason (or, if more than one, the principal reason) 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,
                      ………………
(4)	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

		(a)	depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating is as a sufficient reason for dismissing the employee, and

		(b)	shall be determined in accordance with equity and the substantial merits of the case.”

(3)	The burden of proof is on the employer to establish the reason for the dismissal and, in this case, to demonstrate that it was a reason relating to the conduct of the employee.

(4)	In Dobbin  v  City Bus Limited [2008] NICA 42, the Court of Appeal stated:-

	“49.	The correct approach to [equivalent GB legislation] was settled in two principal cases, British Home Stores  v  Burchell [1980] ICR303 and Iceland Frozen Foods Limited  v  Jones [1983] ICR 17, and explained and refined principally in the judgements of Mummery LJ in two further cases-
                    
	          Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR1283 and J Sainsbury v Hitt [2003] ICR113.

	 50.	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

		“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 for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

		(1)	the starting point should always be the words [equivalent GB legislation] themselves;

		(2)	in applying the section an 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 an 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, but not all, cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view and 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.”

	 51.	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

		“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.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probability, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in the criminal context, or, to use the more old fashioned term, such as to put the matter “beyond reasonable doubt”.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

(5)	The Court of Appeal reviewed these authorities and approved them in the case of Rogan  v  South Eastern Health and Social Care Trust NICA2010 where it held:-

	“21.	The test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases, it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  The employer must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”

(6)	The Court of Appeal in Andrew James Taylor  v  OCS Group Limited [2006] EWCA CIV702 stated:  “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 [equivalent GB 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 dismissal as they 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 had found as a sufficient reason to dismiss”.

(7)	It is therefore not for the tribunal to re-run the disciplinary process and to substitute its own view as to the weight which should have been accorded to the evidence which emerged in the course of that process.  The tribunal has a limited jurisdiction and is restricted to considering whether the employer acted reasonably, in all the circumstances of the case, by applying the statutory test, as discussed in the decisions set out above.

Relevant Findings of Fact

(8)	The respondent company was formed as the result of the merger in 2005 of two bookmaking companies, i.e. William Hill and Stanley Racing.

(9)	The claimant was employed, initially by Stanley Racing and subsequently by the respondent, for approximately 32 years.  He had been the manager of the Boucher Road Betting Office (the office) for approximately 20 years before his dismissal on 8 September 2009 for processing two telephone bets on 11 and 13 July 2009.

(10)	The respondent operates 37 individual betting shops in Northern Ireland and other establishments in the Republic and in Great Britain. The betting shops in Northern Ireland are licensed for “across the counter” betting only.  They are not licensed for telephone betting or for credit betting.

(11)	Before the merger in 2005, Stanley Racing operated a telephone betting service from premises on the Newtownards Road in Belfast.  Customers phoned those premises to place bets.  Money was deposited or withdrawn by customers in any of the other individual betting shops owned by Stanley Racing.  The premises on the Newtownards Road were licensed for telephone betting.

(12)	After the merger in 2005, the telephone betting operation in the Newtownards Road premises was stopped.  William Hill already had a fully equipped call centre licensed for telephone betting and the existing Northern Ireland telephone betting customers were transferred to that centre.  The changes in relation to telephone betting were fully discussed at a manager’s meeting on 24 March 2005.

(13)	The respondent issued a manual which covered in detail the respondent’s policies and procedures in relation to betting.  It was known as the “Licensed Betting Office Manual”.  As an experienced manager, the claimant was familiar with this manual.  At paragraph 1.0(3) it stated:-

	“No employee may take a bet on credit in any licensed betting office or accept a bet over the telephone or one posted through the letterbox, etc.”

	It continued:-

	“Failure to comply with any of the above constitutes gross misconduct within the company’s disciplinary procedure and may result in summary dismissal.”

(14)	The respondent also had an employee handbook.  The claimant had signed for a personal copy of this handbook on 19 August 2006 and a further copy of the handbook was available at the Boucher Road office at all relevant times.  At paragraph 9.3 of the handbook various examples of gross misconduct were set out.  Two such examples were:-

	“Deliberate breach of company procedures, policies or regulations.”

	“Accepting credit or telephone bets.”

(15)	An A3 sized notice was displayed on the wall of the Boucher Road office.  This notice was described as the “Fair Deal Rules”.  The notice stated at paragraph 5(c):-

	“Telephone bets, postal bets or bets put through letterboxes are not accepted.”

(16)	The statutory licences issued for each Betting Office in Northern Ireland, including the Boucher Road office, covered only “across the counter” or “face-to-face” betting.  That had been the position before the merger of the two companies in 2005 (apart from the Newtownards Road premises) and remained the position at all relevant times.

(17)	Ms Janet Whitely was the respondent’s District Operations Manager in 2009.  She was the claimant’s line manager.  Some five or six months before the claimant’s eventual dismissal, the claimant was off on sick leave.  His deputy manager, Brenda McGreevy telephoned Ms Whitely and asked her whether it was in order to take a telephone bet from a particular customer, i.e. Mr John Palmer.  Ms Whitely was surprised at the request and informed Ms McGreevy that it was not in order and that the customer should open a telephone betting account in the normal way with the call centre.  That telephone betting account was then set up for that customer.

(18)	On 13 July 2009, Ms Whitely received a telephone call from an employee in the Boucher Road office.  That employee was upset about bets which had been placed just before and over the twelfth weekend by Mr Palmer.  The employee felt, at that stage, that the customer had not received the full winnings which were due from these bets.

(19)	Ms Whitely went to Boucher Road office and interviewed the employee, a Ms McClenaghan, and took away the documentation relating to the relevant bets.  After examining that documentation and in particular after examining the documentation which related to two bets which had been processed by the claimant, Ms Whitely suspected that those two bets had been placed over the telephone.

(20)	Ms Whitely then formally interviewed Ms McClenaghan, another member of the Boucher Road staff Ms Oonagh McGinley and the claimant.  She also spoke to another member of staff, Katriona Fox on the telephone.  During that investigatory interview, the claimant stated that Ms McClenaghan had taken a telephone bet on 11 July and that he had taken a telephone bet on 13 July.  He stated that he thought that this was okay because money had been left in the office from earlier bets and the customer was unwell.

(21)	In view of the claimant’s admission that he had taken a telephone bet for Mr Palmer, Ms Whitely passed the matter to the respondent’s Human Resources Department for further action.

(22)	Ms Frances Minogue was a District Operations Manager based in Dublin.  She was tasked to conduct the disciplinary process.  She received the papers which had been compiled by Ms Whitely during the investigation process.

(23)	The claimant was invited to a disciplinary meeting on 27 August 2008.  The letter inviting him to that disciplinary meeting referred only to an allegation that he had processed a telephone bet on 11 July.  The claimant was assisted by a colleague, Maureen Ferguson.  The claimant initially confirmed that he had been fully trained in the role of a Manager and that he was familiar with the employee handbook.  He admitted that he had processed telephone bets on both 11 and 13 July 2009 for Mr Palmer.  He then stated later in the meeting that he was not “fully familiar” with the handbook.

(24)	The disciplinary hearing was reconvened for 8 September 2009 and a further letter was issued in advance to the claimant. That letter made it plain that the allegation was now that he had processed telephone bets on both 11 and 13 July 2009.  The claimant was assisted at the reconvened disciplinary hearing by a colleague Margaret Downie.  The claimant again admitted that he had taken bets over the telephone for John Palmer on 11 and 13 July 2009.

(25)	Ms Minogue concluded that the acceptance of the telephone bets on 11 and 13 July was gross misconduct and the claimant was summarily dismissed on 8 September.  That was confirmed by letter dated 9 September.  The letter stated:-

	“After careful consideration and thorough investigation I decided to summarily dismiss you from the service of the William Hill Organisation without notice or payment in lieu of notice.  The decision was taken because whilst working in the Boucher Road LBO on 11 and 13 July 2009 you accepted bets from a customer over the telephone.  This decision is in accordance with Company Disciplinary Procedure as detailed on pages 34-35, Section 9.3 of the William Hill Staff Handbook.  The action is specifically detailed under  -  accepting credit or telephone bets or playing company awps or fixed odds terminals.  Your actions constitute gross misconduct perceived as sufficiently serious to destroy the employment contract and make any further working relationship or trust impossible.”

(26)	The claimant appealed the summary dismissal on four grounds:-

	(i)	The dismissal was too harsh a penalty given his 32 years service.

	(ii)	He had not been told on his return from sick leave that no telephone bets were to be taken at the Boucher Road office from Mr Palmer.  He had only been told that the telephone betting account at the call centre had been opened for Mr Palmer.

	(iii)	He had not been provided with a copy of the Employee Handbook.

	(iv)	The dismissal was imposed because the respondent wanted to save costs.

(27)	The appeal hearing was conducted on 25 September 2009 by Mr John Beresford, the respondent’s Operations Manager for Ireland.  The claimant was represented by Mr Michael Mulholland of GMB.  During that hearing, Mr Mulholland stated, almost in passing, that:-

	“Prior to William Hill, credit betting listed as gross misconduct but with Linda McDowell’s knowledge permitted.  For longstanding customers permitted.”

(28)	However, the main thrust of the appeal was that, although a breach of procedure was acknowledged by the claimant, the penalty was too harsh.

(29)	Mr Beresford decided that he wanted to have statements taken from all the other members of staff in the Boucher Road office before he reached a conclusion.  Those statements were compiled by Mr Marcus Bell, a Security Investigator, employed by the respondent.  Those statements were then forwarded to Mr Beresford together with a summary compiled by Mr Bell.  That summary stated:-

	“To conclude it is apparent from these interviews this situation as regards acceptance of bets by telephone from John Palmer has been going on for some years as a believed authorised exception to normal policy.  It was for him only and cash was always present.  The original origin is unknown but for the people I spoke to it would be their Manager.  However since February 2009 this changed following Brenda’s report to her DOM.  From the evidence raised in conversations, Brenda, Katriona and Audrey had with Damien since then, the indication is that he was aware it had been stopped.  John Palmer had since then stopped phoning on a daily basis and had opened a deposit account  -  until July of course.”

(30)	Mr Beresford confirmed the summary dismissal.

Decision

(31)	After examining the documentation and carefully considering the evidence of the various witnesses, the tribunal is satisfied that the reason for the dismissal was conduct, which is a potentially fair reason under the 1996 Order.

(32)	The tribunal has serious doubts about the claimant’s credibility.  In his evidence to the tribunal on the first day of the hearing, he introduced, for the first time, the defence that he had been given express permission by the previous District Operations Manager, a Ms Linda McDowell, some five years before his dismissal, to process telephone bets from John Palmer and from John Palmer alone.  That defence, if true, would have been a complete answer to the disciplinary charges.  However it was not put forward by the claimant in the course of his investigatory interview or during the disciplinary interview.  His GMB representative did make the statement, recorded above in paragraph 27 of this decision, during the appeal hearing.  That statement referred to:-

	(i)	a time period before the merger with William Hill;

	(ii)	credit betting and not telephone betting;

	(iii)	long-standing customers (plural) and not Mr Palmer alone;

	(iv)	Linda McDowell’s “knowledge” and not Linda McDowell’s express permission.

(33)	The tribunal is satisfied that that statement from the claimant’s GMB representative, in the course of the appeal hearing, was significantly different from the version of events put forward for the first time by the claimant during the tribunal hearing.  In any event, during the appeal hearing, the claimant did not correct the statement made by the GMB representative or seek to expand on the point.  Instead, the appeal focused on the penalty imposed by the respondent.  It is also significant that the appeal letter written by the claimant was on four grounds only and did not mention any alleged express permission to take telephone bets from Mr Palmer.  The tribunal claim form also did not refer to any alleged express permission.

(34)	The tribunal is satisfied that, if the claimant had been given, or had believed that he had been given, express permission to take telephone bets from Mr Palmer, that would have been the main, and in fact the only, response to the investigation process, the disciplinary process and the appeal process.  Furthermore the claimant had obtained two witness attendance orders for the tribunal hearing and could easily have sought such an order to compel Ms McDowell’s attendance.  He did not do so and admitted that he had in fact not even approached Ms McDowell to give evidence on his behalf.  When this was challenged, he gave seven different reasons in the course of his evidence for failing to raise the alleged express permission from Ms McDowell at an earlier stage, or at all, with the respondent.  He stated at various times that:-

	(i)	he did not know why he did not raise this issue earlier;

	(ii)	Linda McDowell was Janet Whitely’s sister and he thought that there could be a conflict of interest;

	(iii)	there was no written permission, it had been oral permission;

	(iv)	he had been told by a solicitor that it would be his word against hers and 
no one would believe him;

	(v)	his union representative was doing all the talking at the appeal hearing and that he left it to him;

	(vi)	the appeal letter was written when he was angry;

	(vii)	he did not realise that his job was on the line.

(35)	These reasons are frankly incredible and the tribunal was satisfied that the claimant’s allegation that he had received express permission from Ms McDowell was untrue.

(36)	The respondent was, in any event, not aware of this alleged express permission and cannot be faulted therefore for failing to put the allegation to Ms McDowell.  The investigation process appears to this tribunal, to have been thorough and fair when judged against the objective standard of a reasonable employer.  The tribunal is also satisfied that the disciplinary and appeal processes were properly conducted and that there were no significant procedural defects.

(37)	The claimant was an experienced manager.  He accepted that it was his responsibility to set an example to the junior staff and to ensure that the respondent’s policies were followed.  In these circumstances, length of service is an aggravating rather than a mitigating factor.  An employee in the claimant’s position and with the claimant’s seniority should simply have known better and the respondent was entitled to take this factor into account.  The claimant complained that the other staff in the Boucher Road office had not been disciplined.  However it is clear that those staff were junior to him and that they had, for some years, accepted his assurance, that it was permissible to take telephone bets from Mr Palmer.  It is therefore unsurprising, in the tribunal’s view, that no disciplinary action was taken by the respondent  against the junior staff in those circumstances.

(38)	The Licensed Betting Office Manual, the employee handbook and the Fair Deal Rules were clear.  Telephone bets were not permitted.  The claimant had ready access to these documents and the tribunal is satisfied that, as a long-standing and experienced manager, he had been familiar with each of those documents.  It is also clear that acceptance of telephone bets was a breach of the statutory licence issued for the Boucher Road office and that such a breach could have had serious financial and reputational implications for the respondent.

(39)	The tribunal is therefore satisfied that, in all the circumstances of the case, the decision to dismiss the claimant summarily was a decision which a reasonable employer was entitled to take. Summary dismissal of an employee with some 32 years service, in these circumstances, is at the upper end of the band of reasonable responses open to an employer but it is nevertheless within that band. The claim is therefore dismissed.

Chairman:

Date and place of hearing: 5 and 6 August 2010, Belfast.

Date decision recorded in register and issued to parties: