THE INDUSTRIAL TRIBUNALS
       
CASE REF:    1140/10
 
CLAIMANT:			Nigel Doran

RESPONDENT:		Bertie Wilson t/a A G Wilson

DECISION

The majority decision of the tribunal is that the claimant was unfairly dismissed and is entitled to the sum of £1,520.00 in compensation.

Constitution of Tribunal:		

Chairman:				Mrs Ó Murray

Members:				Mr B Heaney
					Mr R Schofield 

Appearances:

The claimant was represented by Mr P McEvoy, Barrister-at-Law, instructed by Eamonn McEvoy and Company Solicitors.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Walker McDonald Solicitors.

The Claim

1.	The claimant’s claim was for unfair dismissal.

2.	The respondent’s case was that the claimant was dismissed for gross misconduct but the respondent admitted breach of step 1 of the statutory disciplinary and dismissal procedures (“SDP”).

The Issues

3.	The issues for the tribunal therefore were as follows:

(1)	whether breach of step 1 of the SDP rendered the decision automatically unfair;

(2)	whether it is just and equitable to award any compensatory award;

(3)	whether a Polkey deduction of the compensatory award should be made and if so the percentage reduction to be applied;

	(4)	whether the claimant was guilty of contributory conduct and if so, whether, and to what extent, the compensatory and basic awards should be reduced;

(5)	whether a statutory uplift of the compensatory award is appropriate and if so, the percentage to be applied;

(6)	whether the claimant failed to mitigate his loss and whether this should be reflected in any compensation award;

(7)	whether the statutory minimum basic award of four weeks’ gross pay, subject to the weekly maximum of £380.00, should be paid or whether it would cause injustice to the employer to order that payment.

Sources of Evidence

4.	The tribunal heard oral evidence for the respondent from Mr A G Wilson, the proprietor of the respondent firm; Mr R Chambers the contracts manager and Mr T Stevenson as site contractor.  For the claimant the tribunal heard evidence from the claimant and his wife.  The tribunal also considered the documents to which it was referred and the tribunal considered a recording of a telephone call made by the claimant to Mr Chambers.

Findings of Fact

The majority of the tribunal found the following facts proven on a balance of probabilities:-

5.	The claimant was employed from 1 January 1990 until 10 February 2010 when he was sacked for gross misconduct.  

6.	For the ten years prior to his dismissal, the claimant was a foreman in the respondent firm with responsibility for health and safety, for supervising men on sites and for driving men to sites from the respondent’s depot.

7.	The respondent’s business involved civil engineering construction work in the water and sewerage sector and the work of the claimant and the men under him involved working on sites in the vicinity of machinery.  At the date of the claimant’s dismissal the respondent had approximately 32 employees.  Mr Wilson and his wife were partners in the firm.  Mr Chambers was the contracts manager and was normally the manager involved in HR matters.  Mr Wilson junior was below Mr Chambers in the hierarchy. 

8.	Following reports and incidents in relation to possible abuse of alcohol by men working on sites, the respondent produced written contracts of employment in July 2009 which included the following clause:

			“8.5 Alcohol or Drugs

			We may at any time during the working day (inc to and from work) request a breath sample to test for alcohol or drugs”.

9.	The claimant accepted the terms in the written contract and signed it on 3 July 2009.

10.	The respondent purchased in May 2009, an “Alcohawk” which is a breathalyser unit which can be used to detect the presence of alcohol in an individual’s breath.

11.	Following its purchase, the breathalyser was used periodically on various members of staff.  

12.	The incident which led to the claimant’s dismissal occurred on Monday 25 January 2010.  On that date an excavator driver named Mr T Stevenson, who was a 
sub-contractor on a site on which the claimant and others where working, telephoned Mr Wilson to tell him that he was concerned that the claimant was under the influence of alcohol and that Mr Wilson would probably need to do something about it.

13.	Mr Stevenson noticed that the claimant was “starry eyed”, he was not “cued” in to what was going on around him, was not interested in what the workers were doing, his words were somewhat slurred and he appeared to be shaking.  In addition he observed the claimant periodically leave the site and, in his view, the claimant’s condition deteriorated as the morning wore on until he became so concerned that he rang Mr Wilson after lunchtime.  We accept the evidence of Mr Stevenson as we found him to be a credible witness and his suspicions were later confirmed by the claimant’s breathalyser results.

14.	As a result of the telephone call  from Mr Stevenson, all men reported to the depot.  All the foremen, including the claimant, and one man from each site were breathalysed.

15.	Mr Richard Chambers conducted the breath test at approximately 5.30 pm on that day.  Mr Chambers was the contracts manager having worked for the respondent for approximately 11 years.  He knew the claimant quite well and indeed the claimant was at his wedding.  Mr Chambers was therefore on friendly terms with the claimant.

16.	Mr Chambers proceeded to administer the breath test using the breathalyser unit.  Four men where tested before the claimant and two men after the claimant.  All the men other than the claimant registered zero on the breathalyser unit.  

17.	In contrast the claimant’s first reading registered 0.5 milligrammes per litre, (mg/l) on the breathalyser.  A second test was done immediately and registered 0.45 mg/l.

18.	Unused wrapped mouthpieces were used for each test.  It was not the case that mouthpieces were cleaned with wipes between uses.   The mouthpieces were sealed in packs of two.  The mouthpiece was changed in front of the claimant for the second reading.  Mr Chambers asked the claimant if he had eaten or drunk before the test and the claimant said he had not.

19.	Mr Chambers told the claimant that he had registered two positive readings and asked the claimant why this might be the case.  The claimant’s response was: “I wasn’t drinking on site but I had a right slap of drink last night”.

20.	Mr Chambers took the van keys off the claimant and had another worker drive him home and told the claimant to report to the office the next morning.  At that stage the claimant knew how serious matters were and that his job could be in jeopardy.

21.	On the morning of 26 January 2010 Mr Chambers suspended the claimant because he had proved positive in two breath samples and told the claimant to report the next morning for a disciplinary hearing.  The claimant was verbally informed that he could bring a work colleague or Trade Union representative with him.  As a result of the conversation the claimant was aware of the charge against him and of the seriousness of the matter and that his job could be in jeopardy.

22.	Mr Chambers specifically requested that he not be involved in the disciplinary process following his suspension of the claimant because of the level of his friendship with the claimant which led him to feel awkward.  For this reason Mr Bertie Wilson the owner of the business dealt with the disciplinary hearing and decision.

23.	The disciplinary hearing took place on 27 January 2010, the claimant appeared unaccompanied and he was advised by Mr Wilson that he could have someone to accompany him.  The claimant declined to have a colleague or a Trade Union official to accompany him.

24.	The claimant accepted in the meeting that he had tested positive for alcohol and his explanation was that it might have related to the weekend.  The charges where put to the claimant and he had an opportunity to put his side of the case during the hearing.

25.	Mr Wilson decided to dismiss the claimant at that meeting because he had tested positive for alcohol; this was a breach of health and safety policies in his firm and in the contractor’s health and safety policy; it was a danger; the claimant admitted that he had a positive alcohol readings and the claimant was on a final written warning for a related matter.

26.	The dismissal letter dated 27 January 2010 was sent to the claimant and confirmed that he was being dismissed for gross misconduct (being under the influence of illegal drugs or alcohol), that this was a serious breach of the employer’s policy and that he was on a final written warning.  The claimant was advised of his right to appeal the decision.

27.	The claimant had asked Mr Wilson if he and his wife could meet Mr Wilson a few days later.

28.	The claimant and his wife met with Mr Wilson on Friday 29 January at Mr Wilson’s home.  Mr Wilson made it clear that this meeting was nothing to do with the disciplinary process.  At the meeting Mr Wilson offered to pay £1200.00 in relation to an alcohol reform programme and if the claimant attended it, and convinced him that he was alcohol-free he would consider reinstating him.  The claimant refused the offer made because he felt it would be an admission of guilt that he was drinking alcohol on 25 January 2010.

29.	The claimant gave conflicting evidence as to when he first thought to raise the issue of the breathalyser unit being unreliable.  The claimant maintained that he first thought that the unit was unreliable before he spoke on the phone to Mr Chambers on 27 or 28 January which was in turn before the meeting with Mr Wilson.  Despite this the claimant did not raise any issue as regards the reliability of the alcohol test until the appeal hearing on 10 February 2010 with Mr Chambers when he first mentioned that he used mouthwash such as TCP and Listerine.

30.	Mr Chambers dealt with the appeal hearing as it was recognised that Mr Wilson could not deal with that hearing.  The only other person at Mr Wilson’s level in the organisation was his wife who dealt with the accounts and had no experience or involvement in such matters involving the men.  Mr Wilson’s son was a manager in a different division of the organization and was not normally involved in HR matters.  We therefore accept that, whilst it was not ideal, it was not a defect in procedures for Mr Chambers to have conducted the appeal.  This was a small organisation in terms of management and we accept the respondent’s evidence on the reasons for Mr Chambers conducting the appeal and accept that this was within the band of reasonable responses for a reasonable employer in the circumstances.  At no point did the claimant object to Mr Chambers conducting the appeal.  Mr Chambers was someone that the claimant trusted.

31.	We heard evidence at tribunal indicating that Listerine mouthwash contains alcohol.  What we had no evidence of was the amount of alcohol in Listerine nor the effect, if any, on any breathalyser test conducted.  We accept that Mr Chambers had asked the claimant before the breathalyser test was conducted as to whether or not he had eaten or drunk in the period before the test and the claimant had not mentioned mouthwash.  

32.	The problem for the respondent was the fact that the tests were positive.  The issue of where the readings were on a table in the manufacturer’s handbook was not the principal issue for the respondent in that the respondent regarded the fact that there were positive readings very seriously.

33.	The outcome of the appeal was communicated by letter of 10 February 2010, and in that letter he set out the factors which led him to uphold the dismissal decision.  In the appeal letter Mr Chambers states: “At the breath test I smelt drink and not mouthwash”.

34.	One of the concerns of the firm in relation to the claimant being under the influence of alcohol was that if there had been an accident Mr Wilson could have been liable for a criminal offence under the Health and Safety Legislation.

35.	Under the respondent’s disciplinary procedures under the heading “Health and Safety and Gross Misconduct” it is stated as follows:

	“For health and safety reasons the following is a non-exhaustive list of  disciplinary offences which are normally liable to end in summary dismissal: 

•	Coming to work and/or being under the influence of alcohol …”

36.	The respondent’s Health and Safety Policy states under the heading “Disciplinary Procedure  -  In relation to health and safety litigation” as follows:-

		“3.11.2	A final written warning will be issued for:-

			(a)	Incapacity due to alcohol or drug abuse.

			(b)	Drinking alcohol on company premises.

		3.11.3	Gross Misconduct

			If an employee is considered guilty of gross misconduct, the employee may be suspended by the Director pending investigation by the Company.  If it is decided that the employee should be dismissed, the employee will be dismissed without notice.”

37.	The disciplinary procedure also provides that the employer set out in writing the employee’s alleged conduct which led the employer to contemplate dismissing or taking disciplinary action against him.  The respondent therefore breached its own procedure by failing to set out in writing the employee’s alleged conduct which led to the disciplinary action.

38.	We find on a balance of probabilities that the claimant was under the influence of alcohol on 25 January 2010 because of the evidence of Mr Stevenson’s observation of his behaviour and demeanour, and because of the positive breath tests.

39.	The claimant was on a final written warning arising out of the following incident.  On 6 January 2010 Mr Wilson believed that he smelt alcohol off the claimant in the early morning.  As he did not have the breathalyser machine with him, his concern was such that he travelled to the depot to obtain the breathalyser and then travelled to the site to request that the claimant take a breath test.  The claimant refused as he felt that he was being singled out and victimised.  As the result of the refusal to take the breath test, Mr Wilson issued a final written warning on 6 January 2010 stating his belief that if the claimant had taken the test Mr Wilson had serious doubts as to whether the claimant would have passed the test or not.  The claimant was not advised of his right to appeal the final written warning.  The right of appeal was contained in the claimant’s disciplinary procedures.

40.	The respondent had a zero tolerance policy regarding the consumption of alcohol.

41.	It was conceded by Mr Potter for the respondent that the respondent failed to comply with Step 1 of the Statutory Disciplinary and Dismissal Procedure.   We therefore find as a fact that the respondents failed to comply with Step 1 in that no letter in compliance with that step was sent to the claimant.

42.	We find as a fact that the respondent complied in all other respects with the Statutory Dismissal Procedure.  

Submissions

43.	Mr Potter submitted that, whilst there was a breach of the Statutory Dismissal Procedure, it was open to the tribunal under the legislation to find in these circumstances that there was no unfair dismissal.

44.	In the alternative Mr Potter submitted that, if the tribunal decided to follow the “conventional view” it was open to the tribunal to find unfair dismissal but that there should be no award of compensation for the following reasons:

(a)	The dismissal was otherwise fair and following the Statutory Procedures would have made no difference to the outcome in the circumstances.

(b)	The claimant was guilty of contributory conduct which led to his dismissal.

(c)	It would not be just and equitable in the circumstances for compensation to be awarded to the claimant.

(d)	The statutory minimum award of 4 weeks’ pay in relation to the basic award should not be paid as it would cause injustice to the employer.

45.	Mr McEvoy’s submission was:-

	(a)	that breach of the Statutory Procedures meant that the dismissal was automatically unfair and that the claimant should be entitled to the basic and compensatory awards flowing from that;

	(b)	that the dismissal was otherwise unfair for breach of the respondent’s procedures and breach of fairness generally;

	(c)	that the claimant did not fail to mitigate his loss;

	(d)	the claimant was not guilty of contributory conduct;

	(e)	Mr McEvoy also sought a 10% uplift on the compensatory award in respect of the failure to follow the SDP.

The Law

46. 	The right not be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the ERO”).  Misconduct falls under one of the potentially fair reasons for dismissal set out at Article 130.  Under Article 130A an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures, outlined below, have not been followed due to the employer’s failure.  

47.	The right not to be unfairly dismissed is enshrined in Article 126 of ERO.  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

48.	Under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, an employer must follow a minimum procedure when disciplining or dismissing an employee.  If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure.  The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%.  The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).  Step 1 of the procedure requires the employer to set out in a letter to the claimant a statement of the grounds for disciplinary action and an invitation to a disciplinary meeting.

49.	Under Article 146 of ERO, the tribunal must make an award of four weeks’ pay for procedural unfairness unless the tribunal considers that such an award would result in injustice to the employer. 

50.	
Under Article 156(2) of ERO, the tribunal has the power to reduce the basic award to any extent for contributory fault on the part of the claimant, that is, culpable conduct of the claimant before the dismissal.  The compensatory award can be reduced to any extent for the same reason under Article 157(6).

51.	If the tribunal is minded to reduce the award for contributory fault, both the basic award and the compensatory award must be reduced by the same percentage (McFall  v  Curran [1981] NICA IRLR 455).  As regards contributory fault the question for the tribunal is whether the claimant’s conduct contributed to his dismissal.  

52.	The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.

53.	The EAT in Alexander  v  Bridgen [2006] IRLR 422 summarised the interplay between the statutory procedures and fair or unfair dismissal as follows:

(1)	if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is the chance of dismissal was more than 50%, the dismissal is fair;

(2)	if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made of 50% or less;

(3)	if no statutory procedures were followed there is automatic unfair dismissal and four weeks’ pay is the minimum which must be paid unless the award of four weeks pay would result in injustice to the employer.  A Polkey deduction of up to 100% can be made if following the procedures would have made no difference to the outcome.

54.	The case of Ingram v Bristol Street Parts 2007 UKEAT/0601/06 confirms that there is no need for the tribunal to set out compensation in detail and determine the percentage uplift, if there is a 100% reduction for contributory fault.  

55.	The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303: 

		“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … 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.  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”.

	The “Burchell test” has been approved by the Court of Appeal in the cases of Post Office v Foley & HSBC Bank v Madden [2000] IRLR 827.  This “range of reasonable responses” test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251.  

56. 	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

57. 	The parties referred us to relevant extracts from the legislation, relevant extracts from Harvey on Industrial Relations and Employment Law and to the following cases:

(1)	British HomeStores Ltd v Burchell 1980 ICR 303.
(2)	Rogan v SEHSCT 2009 NICA 47.
(3)	Tiptools v Curtis 1973 IRLR 276.

58.	Mr Potter specifically abandoned reliance on a case of McKellar v Bolton 1979 IRLR 59.

Conclusions of the majority

59.	The tribunal took account of the written and oral submissions of both representatives together with the legal provisions, Harvey and the caselaw to which it was referred and the majority of the panel reached the following conclusions.

60.	We do not accept Mr Potter’s submission that the legislation can be read in such a way that it is open to us to find the claimant to have been fairly dismissed despite a breach of the statutory procedures.  We adopt the approach of Elias J in Alexander v Bridgen.

61.	We find that the admitted breach of Step 1 of the Statutory Procedures renders the decision automatically unfair and our task therefore is to look at the issues of compensation and any reduction or uplift.

62.	Leaving aside the breach of the statutory procedures, the tribunal finds as follows in relation to the dismissal.

63.	Mr McEvoy pointed to the following matters as evidence of defects in the procedure:

(1)	that the respondent breached their own procedures in not setting out in writing the disciplinary charge before the disciplinary hearing;

(2)	that the documents existing before the disciplinary hearing (namely Mr Chamber’s notes) should have been provided to the claimant;

(3) 	that the formal written warning should not have been taken into account because it should not have been given on 6 January 2010 because the claimant had not been informed of his right of appeal;

(4)	that a document requested by the claimant before the appeal hearing was not provided;

(5)	that Mr Chambers did the breath test as well as conducting the appeal;

(6)	that Mr Chambers heard the appeal and was more junior to the person who heard the disciplinary process.

64.	The claimant’s case was presented on the basis that there was reason to believe that the alcohol meter was unreliable, for example, in relation to the callibration of the machine or its usage.  Our finding is that that line of attack was beside the point in that the respondent was entitled to rely on the fact that readings immediately before the claimant’s readings and readings immediately after his readings were zero.  The respondent therefore legitimately did not have any reason to doubt the reliability of the readings.

65.	In his regard we stress that we are not a criminal court nor was the employer engaged in a criminal investigation.  The test of the employer’s actions is the band of reasonable responses for a reasonable employer.  Our task as a tribunal is to make findings on a balance of probabilities in relation to the issues before us.

66.	We accept that the respondent acted within the band of reasonable responses for a reasonable employer in respect of the disciplinary process following the test outlined in Burchell and Rogan.  We accept that Mr Wilson and Mr Chambers had a genuine belief that Mr Doran was under the influence of alcohol.   They had reasonable grounds to sustain that belief relying firstly, on the readings of the breathalyser machine which registered zero immediately before and immediately after the claimant’s tests and secondly, on the evidence of Mr Stevenson.  They carried out a reasonable investigation in those circumstances bearing in mind the claimant’s clear positive alcohol readings.

67. 	The claimant was well aware of the seriousness of the charges against him, was aware of the content of the charges and that they were based on the positive breath tests and had a full opportunity to put his side of his case in the disciplinary and appeals process.  He was also informed of his right to be accompanied.

68.	We do not accept that the points made by Mr McEvoy on the alleged defects in the disciplinary process render the respondent’s actions outside the band of reasonable responses for a reasonable employer nor do we find that they made any difference to the outcome.

69.	We accept that the respondent’s zero tolerance towards alcohol consumption resulted from incidents and concerns which had been communicated to them previously, and was born of a genuine concern for the health and safety of all workers.  In addition the respondent feared that accidents could result if alcohol was tolerated, potentially leading to criminal liability.
70.	
It is clear from the respondent’s policies, and their actions in having all men sign a contract consenting to breath tests and the practice of conducting random breath tests, that these matters were taken very seriously by the respondent.  The respondent’s disciplinary procedure listed under the heading “Gross Misconduct”:  “coming to work and/or being under the influence of alcohol”.

71.	In the claimant’s case, a final written warning had been given to him just a few weeks before the incident which led to his dismissal.  We regard it as within the band of reasonable responses for the respondent to have taken  into account the fact that a current final written warning existed against the claimant.  We do not accept that the failure to advise the claimant of his right of appeal on the final written warning rendered that warning invalid nor do we accept that the respondent could not take it into account in deciding whether to dismiss the claimant.

72.	In summary therefore we regard the dismissal as fair under ordinary principles in that it was within the band of reasonable responses for this respondent to have dismissed in the circumstances.

73.	We accept Mr Stevenson’s evidence that he observed the claimant to be under the influence of alcohol and was so concerned that he rang the respondent to do something about it.  The two positive readings on the breathalyser meter confirmed that report to Mr Wilson.  Taking Mr Stevenson’s evidence into account and the evidence of the breathalyser, we find on a balance of probabilities that the claimant was under the influence of alcohol during that day.

74.	We find that the claimant contributed to his dismissal in that he was under the influence of alcohol during working hours to the extent that he exhibited the signs witnessed by Mr Stevenson and he tested positive twice at the end of the working day on the breathalyser.  We do not accept the claimant’s allegation that the readings which were displayed were due to the use of mouthwash as the claimant has simply brought no evidence to show that the mouthwash he alleges he took could have resulted in readings of that level.  Indeed, as the claimant made no reference to mouthwash until late in the process, do not accept that he used mouthwash on the date in question.

75.	We find that the claimant contributed to his dismissal in that he had responsibility for health and safety.  He was a foreman in charge of men and should have known better than to risk contravention of the alcohol policy in circumstances where he knew random breath tests could be and were carried out.   The claimant also knew 
that he was under a final written warning for refusing to take a breath test in circumstances where there was a suspicion that he was under the influence of alcohol.

76.	As his actions on 25 January followed the final written warning just a few weeks before and as the claimant was well aware of the respondent’s attitude to alcohol consumption during working hours, we find the claimant’s conduct to have contributed to his dismissal by 100%.

77.	The finding of contributory conduct extinguishes the compensatory and the basic awards and as the basic award would therefore be zero the legislation allows for the four-week minimum payment in relation to the breach of the SDP.

78.	We do not accept Mr Potter’s argument that awarding the four-week minimum basic award would cause injustice to the employer.  This award appears to us to be in the nature of a penalty payment to penalise an employer for failing to follow the basic SDP.  We therefore award the sum of £1,520.00 being 4 weeks’ gross pay subject to the statutory maximum of £380.00 per week.

79.	As our contributory conduct finding extinguishes the award apart from the statutory minimum basic award we need not consider in detail the issue of Polkey deduction.  We wish to record that a Polkey deduction of 100% would have been appropriate in this case in view of our finding at paragraph 68 above that the alleged breaches of procedure did not render the dismissal unfair under ordinary principles as they made no difference to the outcome.

80.	Given our findings on contributory conduct and Polkey, we do not need to consider the issue of failure to mitigate loss nor do we need to consider the percentage uplift for failure to follow the SDP.

Minority Decision

81.	The key findings of the minority of the panel are as follows:

	(1)	It is accepted that Mr Stevenson phoned Mr Wilson about the claimant on 25 January 2010 but it is not accepted that Mr Stevenson observed the claimant’s behaviours as set out in the majority decision at paragraph 13 above.  The reasons for not accepting Mr Stevenson’s evidence on this are twofold namely that there was no corroborating evidence and that Mr Stevenson gave evidence that he had previous experience of having to dismiss a workman for being under the influence of alcohol.  

	(2)	The evidence of Mr Chambers is not accepted in the main.  It is not accepted that the readings on the breathalyser unit were point 0.5mg/l and 0.45mg/l although it is accepted that there were positive readings for the claimant.  The reason for not accepting Mr Chamber’s evidence on this is that no log was kept of the occasions on which the breathalyser unit was used previously and there was no log of the readings taken from the claimant on 25 January 2010.

	(3)	Mr Chamber’s note of 25 January 2010 which sets out the claimant’s response to his question as to why there would be positive readings on the breathalyser unit is not accepted as a true account of what occurred.  The reason for not accepting that this occurred is that the note taken by Mr Chambers is very short and appears to be incomplete.  

	(4)	It is not accepted that Mr Chambers verbally told the claimant on 26 January 2010 that he was to report the next morning for a disciplinary hearing and that he could bring a work colleague or trade union representative with him.

	(5)	The claimant accepted at the disciplinary hearing with Mr Wilson on 27 January 2010 that the reading on the Alcohawk was positive but that does not mean that the claimant tested positive for alcohol.

	(6)	As Mrs Wilson signed the claimant’s contract in July 2009 she could have heard the appeal involving the claimant.  Mr Chambers should not have heard the appeal because he was involved in administering the breathalyser test and in suspending the claimant.  If Mrs Wilson could not hear the appeal another person from outside the organisation could have been engaged to hear the appeal.

(7)	It is possible that the claimant used mouthwash in the period before the breathalyser test.

(8)	Any reading above zero on the breathalyser suggested something related to alcohol on the breath.  The positive test meant that there may have been alcohol on the claimant’s breath but did not mean that he had been drinking that day and the minority conclusion therefore is, that it is not accepted on a balance of probabilities that the claimant was under the influence of alcohol on 25 January 2010.

(9)	As regards the incident of 6 January 2010 which led to the final written warning, the employer has not satisfied the minority of the panel that Mr Wilson smelt alcohol off the claimant and therefore had reason to ask the claimant to take the test that day.  The claimant therefore should not have been given a final written warning on that day.  In addition, the final written warning was flawed because the claimant was not advised of his right to appeal.  It is not accepted that the respondent had a zero tolerance policy towards alcohol.

(10)	It is accepted and found as a fact that the respondent complied with the statutory dismissal procedure in all respects apart from failure to comply with step 1 as found at paragraph 41 above.

(11)	The conclusion of the minority of the panel therefore is that: 

(a)	the claimant’s dismissal was automatically unfair for failure to follow the statutory procedures;

(b)	was unfair on ordinary principles as the actions of the employer were outside the band of reasonable responses for a reasonable employer.

	(12)	The reasons for finding the dismissal unfair on ordinary principles are as follows:

		(a)	The matters raised in submissions by Mr McEvoy as outlined at paragraph 63 above amounted to defects in the respondent’s procedure and rendered the dismissal unfair.

		(b)	The final written warning should not have been given to the claimant in the first place and should not have been taken into account in reaching the decision to dismiss as the final written warning was not valid because no right of appeal had been communicated to the claimant.

		(c)	Being under the influence of alcohol did not amount to gross misconduct under the respondent’s health and safety procedure and the disciplinary procedure contained within that.

	(13)	There was no evidence of contributory conduct by the claimant.

	(14)	It is not accepted that there should be a Polkey deduction of any kind from any award.

	(15)	It is not accepted that the claimant failed to mitigate his loss.

	(16)	The claimant’s compensatory award should be uplifted by 10% for failure to follow step 1 of the statutory dismissal procedure.

Majority Decision in Summary

82.	The claimant is entitled to the sum of £1,520.00 compensation for unfair dismissal following the facts found and the conclusions of the majority of the tribunal as set out above.

Chairman:

Date and place of hearing:    11, 12 and 17 January 2011, Belfast.

Date decision recorded in register and issued to parties: