THE INDUSTRIAL TRIBUNALS

CASE REF:    1215/11 

CLAIMANT:	Geraldine Gourley

RESPONDENT:	Antrim Borough Council

DECISION

The decision of the Tribunal is that the claimant was unfairly dismissed and the respondent is ordered to pay her compensation in the sum of £10,264.14.  This is subject to the attached Recoupment Notice.

Constitution of Tribunal:

Chairman:	Ms P Sheils

Members:	Mr M Grant
	Mr B McGuire

Appearances:

The claimant was represented by Mr Gerry Daly, Solicitor, of Francis Hanna and Company Solicitors.

The respondent was represented by Mr Conor Hamill, Counsel, instructed by Worthingtons Solicitors.

THE CLAIM AND THE DEFENCE

1.	The claimant lodged a claim for sex discrimination, disability discrimination and unfair dismissal on 20 May 2011.  However on 6 September 2011 the claimant withdrew all discrimination claims and pursued only the unfair dismissal aspect of her claim at this hearing.

THE RESPONSE

2.	The respondent accepted that they had dismissed the claimant for gross misconduct for arriving into work under the influence of alcohol and denied that this dismissal was unfair.

SOURCES OF EVIDENCE

3.	For the claimant

•	A statement of evidence from Jacqui Darling, a friend of the claimant.

4.	For the respondent

•	Norman Hannan, Assistant Recreational Manager for operations in Antrim Borough Council.

•	Ivor McMullan, Assistant Director, Recreation, Antrim Borough Council.

•	Geraldine Girvan, Director of Development and Leisure, Antrim Borough Council.

DOCUMENTS

5.	The Tribunal received a file of agreed documents from the parties.

SUBMISSIONS

6.	The Tribunal received written submissions from Mr Daly and Mr Hamill.

FINDINGS OF FACT

The Tribunal found the following facts as agreed or proved on the balance of probabilities:-

7.	The claimant, whose date of birth is 5 May 1965, was employed by Antrim Borough Council in late 2005.  In April 2006 the claimant was promoted to the post of senior housekeeper.  Her duties included setting up conference rooms and general cleaning work including the use of cleaning machinery and materials.  The claimant was also responsible for the preparation of rotas for other housekeepers.

8.	During 2010, the claimant sustained a number of family difficulties and found herself suffering difficulties with alcohol.  This eventually impacted on the claimant’s ability to work and in or about May 2010 the claimant drew her difficulties to the attention of the respondent and sought their help.

9.	The Council’s response was to set up an emergency meeting with Mr Norman Hannan and Mrs Elaine Wilson, which meeting was the start of the claimant’s being on a “Well-Being Plan”, a procedure the Council had place for dealing with issues such as those facing the claimant.

10.	The Council arranged for the claimant to attend Occupational Health and permitted her time off to aid recovery.  On her return to work at the end of June 2010, the claimant was permitted a phased return with reduced hours.

11.	Another feature of the Well-Being Plan was that there were to be scheduled meetings between the claimant and Mr Hannan whereby the Council would have the opportunity to monitor the claimant’s work and the claimant would have the opportunity to express any difficulties she was experiencing that could trigger her dependency on alcohol.  It was accepted that there were no such Well-Being meetings between June and October 2010, but that there had been a number of such meetings from the beginning of October through November 2010.

12.	In or about September and early October 2010, the claimant experienced a relapse and in order not to go back on the drink she was required to take Librium to cope with the side effects of not drinking.  She was prescribed a seven day course of Librium and managed to remain at work during this period.  However, the claimant accepted that through misplaced embarrassment she felt unable to attend counselling or to attend AA.

13.	The claimant stated that this period of non-drinking lasted until Christmas 2010 when she had a couple of glasses of wine.  The claimant then experienced a stressful family event over the New Year of 2011 and she felt herself wanting to drink.  The claimant again visited her GP and on 6 January was prescribed a further course of Librium to support her avoidance of drink.

14.	On 14 January 2011 the claimant was due to commence work at 8.00 am.  She slept in.  She telephoned work and offered to take the time as annual leave or to work the absent time at a later stage.  This was refused and the claimant was told to attend work as soon as possible.  The claimant arrived for work at 9.05 am.

14 JANUARY 2011

15.	On her arrival into work, the claimant reported to the Duty Manager, Toni Millward.  The claimant was directed to work in the main hall arranging tables and chairs for an event.  The claimant was also tasked by Ms Millward to collect the pallet truck and collect safety barriers and bleachers from the store.

16.	The claimant went to the store and spoke to her colleague, Andrew Coulter.  The claimant stated that although she had worked with a colleague of hers, Mr Drew Taggart, while in the main hall, only Mr Coulter had been with her at the store.

17.	At 10.30 am the claimant went on her tea break.  She ended this with a smoke break at the smoking hut outside the building.  On her return into the building she was met by Mr Norman Hannan.  Mr Hannan invited the claimant to a Well-Being meeting there and then.

18.	The claimant stated that she thought Mr Hannan was inviting her to a run of the mill Well-Being meeting.  The claimant confirmed that Mr Hannan had advised her that she had the right to be accompanied to this meeting but that she had not availed of this as she had not felt the need to be nor had she ever been accompanied to 
Well-Being meetings before this date.

19.	Mr Hannan stated that he had been contacted that morning by Ms Millward.  Ms Millward had told him that the claimant had arrived into work late and on her arrival into work Ms Millward had noticed that the claimant looked disorientated and that her eyes were very bloodshot.
  
20.	Ms Millward also advised Mr Hannan that she had received a number of complaints from staff to the effect that they could smell drink off the claimant, and in particular that Drew Taggart and Andrew Coulter had reported they had smelled alcohol off the claimant.

21.	Mr Hannan then contacted Human Resources and discussed the matter with Ms Elizabeth Wilson.  Mr Hannan stated that he had thought that the fairest thing to do would be to hold a Well-Being meeting with the claimant in order to establish if there was any evidence or facts that lay behind these reports.  

22.	Mr Hannan stated that he had chosen a Well-Being meeting as a mechanism to deal with the situation as he believed that it would have been otherwise inappropriate to confront the claimant with the allegations without evidence.  Mr Hannan also stated that he had taken this decision in light of the potential effect that such a confrontation without evidence might have had on the claimant and her progress on the Well-Being Plan.

23.	Mr Hannan asked the claimant to make her way to the Templepatrick Room, told her that Ms Wilson was already there and that Mr Hannan would join them shortly afterwards.  The claimant stated that she was somewhat surprised that Ms Wilson was to attend the meeting.

24.	The meeting took place across a small table with the claimant at one side and Ms Wilson and Mr Hannan at the other.  Mr Hannan opened the meeting by advising the claimant that a report had been made to him that staff members had complained that she had reported for work that morning under the influence of alcohol.

25.	There was considerable dispute between the parties as what had occurred at the meeting thereafter.  The claimant stated that during the meeting there had been “banter back and forth” between Mr Hannan and Ms Wilson, with one saying to the other, “can you smell alcohol off her?”  She stated that she had been asked to leave the room at a point when Mr Hannan and Ms Wilson began referring to the staff members who had reported her that morning.

26.	The claimant also stated that during the course of the meeting, Ms Wilson offered her the opportunity to undergo a urine test.  The claimant added that this offer was subsequently withdrawn after discussion on the basis that the Council had no proper facilities to carry out such a procedure.

27.	Mr Hannan refuted this version of the meeting.  Mr Hannan stated that when he had become aware that the claimant smelt strongly of alcohol he had invited the claimant to step outside the meeting room whereupon he asked Ms Wilson if she could smell anything in particular.

28.	Mr Hannan stated that Ms Wilson had confirmed that she too could smell alcohol off the claimant at which point he had invited the claimant to return to the meeting.  Mr Hannan stated that he had put it to the claimant that both he and Ms Wilson could smell alcohol from her.

29.	For his part, Mr Hannan stated that no offer was made at this meeting inviting the claimant to undergo a urine test.  Mr Hannan stated that the facility to undergo workplace urine tests had been discussed with the claimant during previous 
Well-Being meetings in 2010.  Mr Hannan stated that the claimant had confirmed her willingness to undergo such a urine test if required but that she had been advised at a Well-Being meeting in November 2010 that this issue would not arise as the Council had no proper facilities to conduct such a procedure.

30.	It was agreed that Ms Wilson asked the claimant for contact details of the claimant’s doctor.  The claimant gave these details but the respondent did not make any subsequent contact with the claimant’s doctor.

31.	The Tribunal noted the statement Ms Wilson prepared for the investigation.  Ms Wilson stated that on the 14 January 2011 she had been telephoned by Mr Hannan and asked to attend with him at a Well-Being meeting he was going to have with the claimant.

32.	Ms Wilson’s statement made no reference to the fact that Mr Hannan had asked the claimant to step outside the room at any stage of the meeting.  Ms Wilson’s statement did not make any reference to a discussion about a urine test.

33.	The Tribunal noted that the discussion about the viability of urine testing was contained in notes of the well-being meetings presented by the Council and were not disputed by the claimant.

34.	The Tribunal concluded that the claimant had been asked to step out of the room during the meeting to discuss whether each of them could smell alcohol off the claimant, before stating this to the claimant, and that she had not been offered the opportunity to undergo a urine test.

35.	In reaching these conclusions the Tribunal preferred the evidence of the respondent.  The Tribunal took into account the agreed fact that the urine test issue had been canvassed in a previous Well-Being meeting wherein the claimant was advised that the respondent had no facilities to carry out this procedure.  The Tribunal concluded that it would have been unlikely that Mr Hannan or Ms Wilson would have made such an offer in these circumstances.

36.	At the meeting, the claimant first stated that she had not had any alcohol since October 2010, but then admitted that she had drunk some wine over the Christmas period.  The claimant advised Mr Hannan and Ms Wilson that she had had a relapse at Christmas time and that in order to sustain her from another relapse in the New Year period, when there had been a crisis in the family, she had gone to her doctor on the 6 January 2011 and he had prescribed her a 7 day course of Librium which she had taken while at work from that date until the 14 January 2011.

37.	The claimant also confirmed that she had not attended an AA meeting to assist her staying off the drink, although she had previously agreed to do so as part of her 
Well-Being plan.

38.	The claimant admitted she had consumed some wine and beer (two bottles of 
non-alcoholic wine and a bottle of Becks non-alcoholic beer) the previous evening (13 January 2011).

39.	When it was put to the claimant that there was a smell of alcohol off her, the claimant had stated that she was sorry for the smell but that it was not because she had taken alcoholic drink.

40.	In the event, the claimant was suspended at this meeting.  In a follow up letter of the same date the claimant said she was advised that an investigation was deemed necessary “to establish the basic facts around the alleged incident and to determine whether the matter needs to be progressed to a disciplinary hearing.”

THE INVESTIGATION

41.	As part of the investigation the respondent garnered a number of statements from staff members.  These included statements from Norman Hannan, Elizabeth Wilson, Tony Millward, Drew Taggart (three statements), Andrew Coulter (two statements), Stephen McCombe, Aron Crawford, Aaron Bell and Jenny Thompson.

18 January 2011  -  Investigation Meeting

42.	The claimant was invited to an investigation meeting.  This ultimately took place on 18 January 2011.  The claimant was accompanied by her union representative.

43.	At the outset of the meeting the claimant was told that the meeting was an investigation meeting into an allegation that the she had reported to work under the influence of alcohol.  The claimant was advised that it was not a disciplinary meeting.

44.	The meeting was chaired by Mr Norman Hannan who was accompanied by Ms Barbara Irwin, Human Resources Manager.  Mr Hannan opened the meeting by stating that he and a number of other staff members had smelt alcohol off the claimant on 14 January 2011 and asked her if she had taken any alcoholic drinks during the evening before.

45.	The claimant stated that she could not give an explanation for why people smelt alcohol off her.  She stated that she had showered that morning and used a mouthwash.  The claimant also advised Mr Hannan that she had applied her make up that morning and had fixed her hair as best she could with hairspray.

46.	The claimant also stated that she had been on a course of Librium for the previous seven days and that these tablets had made her sleepy.  She explained that this was why she had slept in on that morning.

47.	Mr Hannan confirmed with the claimant that she was aware of the consequences of reporting to work under the influence of alcohol and that she would have been aware of the fact that if she had phoned in sick that morning she would have triggered a formal case review meeting on the managing attendance policy.

48.	As part of the investigation Mr Hannan garnered a number of statements from staff members.  These included statements from himself, Elizabeth Wilson, Tony Millward, Drew Taggart (three statements), Andrew Coulter (two statements), Stephen McCombe, Aron Crawford, Aaron Bell and Jenny Thompson.

Investigation Outcome

49.	The respondent subsequently advised the claimant that the investigation panel had come to the conclusion that the allegation that she had been under the influence of alcohol while at work should progress to a disciplinary hearing.  The respondent stated that this was on the basis that the investigation panel could find no other reasonable explanation as to why staff had reported that she had smelt of alcohol, had bloodshot eyes and was disorientated.

50.	In particular the Investigation Outcome indicated that the panel had relied on the fact that Mr Hannan, Ms Wilson and Mr Taggart had all stated that they smelt alcohol from the claimant’s breath, although Ms Wilson’s statement did not actual say this, that Mr Taggart had felt it appropriate to advise the Duty Manager of this fact and that Andrew Coulter had done the same.

51.	The investigation panel also considered it of significance that, although Mr McCombe had not noticed a smell of alcohol off the claimant, he had been sufficiently alerted by the claimant’s appearance and actions to ask her directly if she had been drinking.

The Disciplinary Meeting

52.	In February 2011 the respondent invited the claimant to a disciplinary hearing on Thursday, 10 February 2011.  This hearing ultimately took place on 15 February 2011.  The claimant was told that the disciplinary meeting would investigate the allegation of her being under the influence of alcohol at work which could amount to gross misconduct.  She was advised of her right to be accompanied and was represented by her union representative.

53.	The disciplinary panel was chaired by Mr Ivor McMullan, Assistant Director of Recreation, who was accompanied by Ms Elaine Magee, Assistant Director of Human Resources.

54.	The claimant was provided with a number of documents including the Outcome of the Preliminary Investigation and the staff statements.

55.	At the outset the claimant stated that there were at least three other employees who she had been in close proximity to on the morning of 14 January who had not been asked to provide statements.

56.	The claimant also challenged Ms Millward’s statement in that it had made no reference to smelling alcohol off the claimant, even though the claimant had been working quite closely with Ms Millward that morning and that if the claimant had had smelt of alcohol Ms Millward ought to have noticed it.

57.	The claimant also challenged the status of the so called Well-Being meeting on 14 January 2011 and submitted that it was in fact an investigatory meeting.

58.	The hearing proceeded and the claimant was given an opportunity to respond to nine separate questions investigating the events of 14 January 2011.

59.	In relation to her having slept in, the claimant stated that her course of medication to prevent alcohol cravings had made her drowsy and having worked seven days in a row she had rung to ask if she could work up her hours at another time.

60.	In relation to what, if any, alcohol she had consumed immediately prior to the 14 January 2011 the claimant stated that she had been drinking two bottles of 
non-alcoholic wine and one bottle of Becks non-alcoholic beer on the previous evening but stated that she had not taken alcohol.  The claimant stated that she would have been unable to drink alcohol while on her medication.

61.	In response to the allegation that a number of employees smelt a strong smell of alcohol of her the claimant stated that she had showered, cleaned her teeth and used mouthwash before coming into work.  She also stated that some people said that non-alcoholic beer and wine smelt of alcohol.

62.	The respondent put aspects of staff members’ statements to the claimant at this meeting.  In particular the respondent asked the claimant to comment on Mr Taggart’s statement, that she had appeared to be confused about what she was doing when asked to get a pallet truck.  The claimant stated that this was not a job she normally did and stated that in any event she had only used the pallet truck when she had been in Andrew Coulter’s company, not in Mr Taggart’s company.  She stated that she and Mr Taggart had only worked together when they were moving the chairs.

63.	The respondent also asked the claimant to comment on Mr Stephen McCombe’s statement that she had appeared to be slow, lethargic, had glazed-bloodshot eyes and that he had asked her if she had been drinking.  The claimant responded that she was very friendly with Stephen McCombe and she had told him she was back on her tablets.  She stated that she told him she felt disorientated as she had slept in.

64.	The claimant also confirmed that she was on medication due to having had an episode of drinking over the Christmas period.  The claimant also confirmed that she asked her doctor to refer her to an addiction clinic again.

65.	The claimant also confirmed that, in line with the records of her Well-Being action plan, she had previously been made aware of the consequences of being under the influence of alcohol while at work and in particular that this could result in dismissal.  The claimant also confirmed that she understood that being under the influence of alcohol could have very serious health and safety implications in view of the fact that her work involved the use of chemicals and equipment.

66.	The claimant also confirmed that although she had signed up to agreed actions listed in the Well-Being action plan, including seeking further help from her doctor, attending further counselling sessions, joining AA and keeping Mr Hannan informed of her progress on a weekly basis, she had not attended AA as she did not want to go to the local meetings where people may have known her.

67.	The claimant stated that her addiction nurse had advised her of an AA meeting in Holywell but had asked her not to attend it until the claimant had finished her sessions with the nurse.

68.	The claimant stated that her relationship with Mr Hannan had been good and she understood he was happy with her progress since he had not asked her to go to any further Well-Being meetings since November.

69.	The disciplinary panel did not investigate the matter beyond their consideration of the findings of the Preliminary Investigation.  In particular the panel did not interview any of the witnesses as suggested by the claimant.  They did not query with Ms Millward why she had not stated that she too had smelt alcohol off the claimant nor did they query the accuracy of Mr Taggart’s statement.

70.	Further, the disciplinary panel did not question the fact that Mr Hannan had chaired the Preliminary Investigation and that he had presented to it and took into account his own witness statement.

Disciplinary Meeting Outcome

71.	On 22 February 2011 the claimant was advised that the respondent was terminating her employment summarily on the grounds of gross misconduct on the basis that the dismissal panel determined that the claimant had been under the influence of alcohol while at her work on 14 January 2011.

72.	In reaching this decision the disciplinary panel took into consideration three witness statements indicating that there was a smell of alcohol from the claimant’s breath, namely Norman Hannan, Elizabeth Wilson and Drew Taggart.  The disciplinary panel rejected the claimant’s submission that the smell of alcohol was due to the use of hairspray or non-alcoholic drinks.

73.	The disciplinary panel also took into account that the claimant had been fully aware of the potential consequences of being under the influence of alcohol at work and that this could result in her dismissal.

74.	The panel also took account of the fact that the respondent had reacted positively and supportively towards the claimant from her admission that she had an alcohol problem in May 2010, in that she had been referred to Occupational Health; had had her working hours reduced to facilitate a return to work after a long term absence; had received support from the council’s occupational nurse in July 2010 and September 2010; had been given a Well-Being action and concluded that all reasonable efforts have been made to support the claimant from the time the respondent had become aware that the claimant had an alcohol problem.

75.	The disciplinary panel also took into account that at the outset the claimant had denied that she had taken alcohol since October 2010 when she later admitted in the same meeting that she had an episode of drinking over the Christmas period.  The panel concluded that the claimant had provided false information in doing this.

76.	In summary the disciplinary panel concluded that “on the basis of the evidence provided in the three witness statements the panel determined Geraldine (the claimant) was under the influence of alcohol while at work on 14 January”.

77.	The panel’s conclusion went on to state “the panel then considered whether there were any factors which would warrant a lesser penalty than dismissal but did not deem there to be any in this case and reached the decision to dismiss summarily”.

THE APPEAL

78.	The claimant appealed the disciplinary panel’s decision on the following basis:- 

	that the decision to dismiss was not correct or a justifiable decision and that the investigation was flawed; that all material facts where not presented prior to the disciplinary hearing; that the dismissal had not been carried out in accordance with the respondents’ policies and that no procedure had been followed to ascertain if the claimant had been under the influence of alcohol while at work.  

79.	The claimant’s appeal was chaired by Ms Geraldine Girvan, Director of Development and Leisure.  She was attended by Paul Kelly, Assistant Director of Development.  The claimant was accompanied by her trade union representative, Mr Donnelly.

80.	The appeal panel heard a number of submissions from Mr Donnelly in relation to three grounds of the claimant’s appeal.

81.	In relation to the first ground it was submitted that some witness statements had not been taken into account during the investigation; that one member of staff had subsequently advised her that he had felt pressurised by management into making his statement; that an unidentified witness had indicated that the typed version of his or her statement did not accurately select what she or he had said; that the claimant had been working for one and a half hours on the morning of 14 January 2011 without anyone querying her demeanour or performance and that the course of medication she had been prescribed had significant side effects which could account for her apparent behaviour and that in any event the medication causes such a reaction to alcohol she could not have been under the influence of it at the time.

82.	In relation to the second ground the claimant submitted that as the meeting on the 14 January had been described as a Well-Being meeting it had been inappropriate and not in accordance with current respondents’ procedures to have suspended her at it.

83.	Further the claimant submitted that it was not clear from the respondents’ published policy what constituted being “under the influence of alcohol” during working hours or how this is evidenced and tested.

84.	In relation to the third ground the claimant submitted that she had been requested by Ms Wilson to provide a urine sample but had then not been required to do so.

85.	The appeal panel did not investigate or explore the challenges the claimant made to the disciplinary panel nor did they investigate any of the submissions the claimant had made to the appeal panel.

Appeal Outcome

86.	The appeal panel found that the evidence presented at the hearing was not “new evidence” and found that the decision of the disciplinary panel was correct and justifiable; and that the investigation had not been flawed.

87.	The appeal panel considered all the information presented before it and concluded that it had been reasonable for the disciplinary panel to determine the claimant was under the influence of alcohol at work on 14 January 2011 based on the evidence of the three witness statements on which they had relied to reach their conclusion, namely Norman Hannan, Elizabeth Wilson and Drew Taggart.

88.	The appeal panel also concluded that there was no evidence that the dismissal had not been carried out in accordance with council procedures. 

89.	The appeal panel upheld the decision of the disciplinary panel summarily to dismiss the claimant on the grounds of gross misconduct.

THE LAW

Unfair Dismissal

90.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer.  Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

91.	Article 130 states at paragraph (2) a reason falls within this paragraph if it –

	(a)	relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do, 

	(b)	relates to the conduct of the employee,

	(c)	is that the employee was redundant or,

	(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.

92.	Article 130(4) states where the employer has fulfilled the requirements at 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 employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;

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

93.	Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.

94.	The statutory test for what reasons may amount to dismissal is set out at Article 130 of the Order.  These include capability of modifications, conduct, redundancy, a statutory-necessary dismissal or some other substantial reason.

95.	It is for an employer to establish the reason for the dismissal and that this dismissal falls into one of those potentially fair categories.  The decision as to whether the decision to dismiss is fair must be decided (by a Tribunal) with reference to:-

	(a)	whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in keeping it as a sufficient reason for the dismissal; and

	(b)	this decision shall be determined in accordance with equity and the substantive merits of the case.

Case Law

96.	The Tribunal took relevant case law into account and in particular:-

	British Home Stores Ltd  v  Burchell [1978] IRLR 379.

	Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47.

97.	It is case law that gives the tribunal guidance on the way in which it should carry out its determination.  A Tribunal must examine whether the respondent had a reasonable belief in the reason for the dismissal and that that belief was sustained by the employers having carried out a reasonable investigation and that the ultimate sanction of dismissal is “within the band of reasonable responses” of what other reasonable employers would have done in the same circumstances.

98.	If a Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged, as informed by having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses, a Tribunal must not interfere beyond this.  It is not the Tribunal’s role to substitute its own view for that of the employer.

99.	In assessing this statutory test in light of the guidance in British Home Stores Ltd  v  Burchell as adopted in Rogan  v  South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see if these were “reasonable”.  The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation.  This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the appeal hearing and decision.

The Tribunal’s Conclusions

100.	In light of the facts found and how the law applies to these the Tribunal concluded that the claimant was unfairly dismissed. 

101.	In reaching this conclusion the Tribunal concluded that it had been unreasonable for the respondent to have invited the claimant to a meeting to discuss an issue of potential misconduct without specifically advising her of the meeting’s true purpose. 

102.	The Tribunal concluded that being invited to be accompanied to this meeting was a cynical attempt to convince the claimant that the meeting was nothing more sinister than a Well-Being meeting.

103.	The Tribunal did not accept the respondent’s rationale for the decision to invite the claimant to such a meeting while calling it a Well-Being meeting and concluded that in any event no such rationale could excuse this lapse in procedural propriety.

104.	The Tribunal noted that having conducted that first meeting Mr Hannan went on to chair the second meeting and took into consideration his own witness statement when reaching the decision to progress the matter to a disciplinary hearing.

105.	The Tribunal concluded that it had been unreasonable for Mr Hannan to have conducted this subsequent meeting while at the same time presenting his own evidence to it.

106.	The Tribunal was struck by the respondents’ resistance, even at this hearing, to the idea that this situation could impact on the requisite independence in conducting investigations.  The Tribunal considered that a reasonable employer would have sought to have preserved the integrity of its investigation procedures, particularly one such as the respondent whose size and resources would have made it easy to have replaced Mr Hannan with a another manager to carry out the second investigatory meeting.

107.	The Tribunal noted that neither the disciplinary panel nor the appeal panel conducted any investigation subsequent to Mr Hannan’s investigation.  Specifically the disciplinary panel did not investigate the claimant’s contentions nor did the appeal panel make any enquiry into the claimant’s challenges to the content of the witness statements or seek to ascertain whether there was any truth in the claimant’s assertion that a member of staff had felt pressured into making a statement. 

108.	These panels thereby failed to give any or any proper regard to the challenges the claimant made to the findings of each stage of the investigation and relied on the findings of the investigation meeting as conducted by Mr Hannan, which included his reliance on his own witness statement.

109.	The obligation on the employer is to satisfy the Tribunal that he had a reasonable belief in the misconduct of the claimant.  The employer can only do so by satisfying the Tribunal that a reasonable investigation has been carried out.  “Reasonable” need not be extensive nor match such investigation as the tribunal may have thought preferable.  It must however be fair and as such be a sound basis of the “reasonable belief”.  The belief will not be reasonable if the investigation on which it is based is not reasonable.

110.	In this case the Tribunal concluded that the disciplinary and appeal panels, in adopting the findings of the investigation panel, had not had a sound or reasonable basis to sustain a reasonable belief in the claimant’s misconduct.

111.	The Tribunal concluded that failure of the disciplinary and appeal panels to act in a way to ensure fairness in the process rendered unfair the investigation as a whole and that accordingly the claimant’s dismissal had been unfair.

COMPENSATION

112.	Compensation is calculated in light of the provisions of Articles 152 to 161 of the Employment Rights (Northern Ireland) Order 1996.

	Basic Award 

	£411.10  x  1  x  1  =  £411.10  x  4  x  1.5	=	  £2,466.60

	Loss from dismissal to date of Hearing
	23.2.11 until 30.1.12, 48.5 weeks  x  £304.64 	=	£14,775.04

	Less Earnings received between 16.11.11 and 30.1.12
	£73.08  x  10.5 weeks  =  £767.34 	=	£14,007.70

	Total Basic Award 	=	£16,474.30

	Compensatory Award

	Loss of Statutory Rights		     £500.00

	Future Loss

	£304.64  -  £73.08  =  £231.56  x  104 weeks	=	£24,082.24

	Total Future Loss 	=	£24,582.24

	TOTAL COMPENSATION  =  £16,474.30  +  £24,582.24 	=	£41,056.54

Reductions to Awards

113.	Under Article 156 of the Order, the Tribunal may reduce or further reduce the amount of the basic award to any extent where the Tribunal considers that any conduct of the claimant was such that it would be just and equitable to do so.

	Under Article 157 of the Order, the compensatory award may be reduced if the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant.

	The Tribunal concluded that it would be just and equitable to reduce the claimant’s compensation under both heads.

	The Tribunal noted the claimant’s struggle with alcoholism and her attempts to deal with her addition.  However the Tribunal also noted the lengths to which the respondent had gone to support the claimant and to retain her at work.

	The Tribunal concluded that it would be just and equitable if the compensation reflected the extent to which the claimant had contributed to her own dismissal.  In particular it noted the claimant’s changing account of her not having taken a drink since it and her having had a lapse over the Christmas period. 

	The Tribunal also took account of the claimant’s various possible and changing explanations for the smell of alcohol from her, the mouthwash, the hairspray and finally the non-alcoholic drinks. 

	The Tribunal took account of the undisputed facts that the claimant’s eyes were bloodshot, that she smelt of alcohol and was disorientated and concluded that this was more likely than not the result of her having been drinking.

	In these circumstances the Tribunal has reduced the claimant’s compensation by 75%.

	Accordingly the Tribunal orders the respondent to pay the claimant the sum of £10,264.14.

RECOUPMENT

114.	This is a relevant decision for the purposes of recoupment of benefit received by the claimant.

115.	The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case.  These Regulations require the Tribunal to set out:-

	(a)	the monetary award;

	(b)	the amount of the prescribed element, if any;

	(c) 	the dates of the period to which the prescribed element is attributable; and

	(d)	the amount if any by which the monetary award exceeds the prescribed element.

116.	Rule 4 Paragraph 2 of these Regulations states where the Industrial Tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.

117.	The prescribed element is that amount of the monetary award which represents a raise of pay or compensation for loss of earnings, up to the date of the Tribunal hearing.  In this case that period runs from the date of the dismissal, which was 21 May 2011, until the date of the hearing, 30 January 2012, a period of 36 complete weeks = £16,474.30 less deductions of £13,032.01  =  £3,442.29 reduced by 75%  =  £2,581.72

118.	Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £10,264.14 less £2,581.72  =  £7,682.42.

119.	The attached Recoupment Notice forms part of the decision of the Tribunal.

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

Chairman:

Date and place of hearing:   	30 & 31 January, 1-3 February and 23 November 2012, Belfast.

Date decision recorded in register and issued to parties:  

Case Ref No: 	1215/11

CLAIMANT:	Geraldine Gourley

RESPONDENT(S):	Antrim Borough Council

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT 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; The Social Security (Miscellaneous Amendments No.6) (Northern Ireland) 2010.

	£	
(a)  Monetary award	10,264.14	
(b)  Prescribed element	2,581.72	
(c)  Period to which (b) relates:	21/05/11 to 30/01/12	
(d)  Excess of (a) over (b)	7,682.42	

	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, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development 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, Income-related Employment and Support 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 Social Development 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.