THE INDUSTRIAL TRIBUNALS

CASE REF:	361/15

CLAIMANT:			Jill Porter

RESPONDENT:		Shoe Retailers UK Limited

DECISION 
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed by the respondent and that she is entitled to the sums as set out in paragraph 8(vii) of the conclusions amounting to an award of £9,906.07 (subject to paragraph 8(viii).

Constitution of Tribunal:
Employment Judge:	Employment Judge Crothers	
Members:			Mrs T Hughes
				Mr D Walls

Appearances:
The claimant was present and was represented by Mr Friel, Barrister-at-Law instructed by Donnelly and Kinder Solicitors.
The respondent was represented by Mr N Marsh of NJM Business Services.

THE CLAIM
1.	(i)	The claimant claimed that she was unfairly dismissed by the respondent and that she was entitled to a notice payment, together with an amount in respect of an unlawful deduction from wages.  The claimant withdrew her claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations NI 2009.  The respondent disputed the claimant’s claims in their entirety.

	(ii)	The tribunal sought to establish the precise legal and factual issues before it in advance of the hearing and afforded the parties, and the respondent’s representative in particular, considerable time to liaise with the Labour Relations Agency, as required, and to contact his client.  The tribunal sought at all times to conduct the hearing in accordance with its overriding objective.

THE ISSUES

2.	The remaining agreed legal issues before the tribunal were as follows:-

	Unfair Dismissal

	(i)	Was the Claimant unfairly dismissed by the Respondent, contrary to Articles 126 and 130(4) of the Employment Rights (NI) Order 1996?

	(ii)	Did the Respondent carry out a reasonable investigation?

	(iii)	Was the decision to dismiss the Claimant within the range of reasonable responses available?

	(iv)	Did the Respondent consider alternatives to dismissal?

	(v)	What was the real reason for the Claimant’s dismissal?

	(vi)	Did the Respondent fail to comply with the statutory dismissal procedures by proceeding with the Claimant’s disciplinary hearing in her absence and/or failing to grant the Claimant’s request for an appeal hearing, contrary to Part 1 Schedule 1 of the Employment (NI) Order 2003?

	(vii)	Did the Respondent fail to comply with Article 12 of the Employment Relations (NI) Order 1999 as amended?

	(viii)	Was the Claimant’s dismissal automatically unfair?
	
	Breach of Contract

	(ix)	Does the summary dismissal of the Claimant amount to a breach of contract, wrongful dismissal and/or a breach of Article 188 of the Employment Rights (NI) Order 1996?

	Unlawful Deduction of Wages

	(x)	Did the Respondent make an unlawful deduction of wages from the Claimant?

SOURCES OF EVIDENCE

3.	The tribunal heard evidence on behalf of the respondent from Nigel Marsh who, together with his wife, provide Accountancy and Human Resources Services to small businesses.  A statement was also provided by Sarah Richmond who decided to dismiss the claimant.  However, she did not appear before the tribunal to adopt her statement as evidence and to be cross-examined.  Her statement can therefore be afforded only limited weight.  In the circumstances the tribunal was satisfied that an adverse inference should be drawn from Sarah Richmond’s decision not to give evidence, particularly in light of the tribunal’s decision to allow Mr Marsh further time to contact her.  The tribunal also heard evidence from the claimant and received an agreed bundle of documentation.  It also received, subject to liability, a schedule of loss.

4.	(i)	During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – 2009 NICA 47.  

In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

		“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

			The judgement as to the weight to be given to evidence was for the 	Disciplinary Panel and not for the tribunal.  In this instance it appears 	that the tribunal has strayed into the forbidden territory of making its 	own determination of the evidence.”

	(ii)	The claimant’s representative also contended before the tribunal that the minimum statutory disciplinary procedures had not been complied with by the respondent and that her dismissal was automatically unfair as the respondent dismissed the claimant in her absence and failed to afford her an appeal against her dismissal.

	(iii)	The minimum statutory disciplinary procedures (“DDP”) as set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 provide as follows:-

	″Step 1: statement of grounds for action and invitation to meeting

		1.‒(1)	The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 (2)	The employer must send the statement or a copy of it to the 	employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

		2.‒(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

		(2)	The meeting must not take place unless‒

			(a)	the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

			(b)	the employee has had a reasonable opportunity to consider his response to that information.

(3)	The employee must take all reasonable steps to attend the 	meeting.

(4)	After the meeting, the employer must inform the employee of 	his decision and notify him of the right to appeal against the 	decision if he is not satisfied with it.

Step 3: appeal

	3.‒(1)	If the employee does wish to appeal, he must inform the 	employer.

(2)	If the employee informs the employee of his wish to appeal, the 	employer must invite him to attend a further meeting.

(3)	The employer must take all reasonable steps to attend the 	meeting.

(4)	The appeal meeting need not take place before the dismissal 	or disciplinary action takes effect.

(5)	After the appeal meeting, the employer must inform the 	employee of his final decision″.

FINDINGS OF FACT

5.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

	(i)	The claimant was employed by the respondent from 1 March 2006 until the effective date of termination of her employment on 25 November 2014.

(ii)	At all times material to the case before the tribunal, Sarah Richmond was responsible for decisions on behalf of the respondent including the decision to dismiss the claimant and for the decision not to afford her an appeal against dismissal.  Nigel Marsh had been engaged in drafting contracts for the respondent company since 2009.  Following a grievance hearing on 17 November 2014, which the claimant did not attend and having received previous correspondence relating to a disciplinary hearing on Tuesday 21 October 2014 relating to certain other matters (which was not progressed), the claimant received further correspondence signed by Sarah Richmond dated 18 November 2014 in the following terms:-

″Dear Jill

The Company is considering taking disciplinary action against you.  You are therefore invited to attend a disciplinary hearing on Monday 24th November 2014 at 11.00 am at The Acorn Business Centre, 2 Riada Avenue, Ballymoney.  This gives you reasonable time to prepare your case.

The allegation against you is as follows:

•	You have forged and replaced page 2 of your employment contract dated 1st February 2012 which was signed on 30th April 2012.  This forgery was produced in an attempt to get your working week changed from Monday only to Monday and Friday.

	In the Company’s view, this allegation constitutes gross misconduct.

For your information, copies of the following documents are enclosed by way of evidence:

•	The scanned copy of your employment contract you provided to Nigel Marsh by email.

•	A copy of the signed employment contract provided by Sarah Richmond.

•	A copy of your employment contract dated 1st April 2009.

•	A copy of the minutes of the Grievance meeting held on 17th November 2014 which explains the differences in the documents provided.

	These documents form the basis for the Company’s complaint and the Company will therefore rely on these documents in support of the allegations made against you.

If you would like to submit a written statement for consideration in advance of the hearing you may do so.  This should be forwarded to Sarah Richmond.

At the hearing, you will of course be given the full opportunity to explain your case and answer the allegations.  You may ask questions, dispute the evidence, provide your own evidence and otherwise argue your case.  Due consideration will be given to any factors or explanations which you raise when considering what, if any, disciplinary sanctions are to be imposed.

The disciplinary hearing will be chaired by Nigel Marsh, and Joann Marsh will also be present to take an attendance note of the hearing.

You have the statutory right to be accompanied at the disciplinary hearing.  Your companion may be either a work colleague or a trade union official of your choice.  Your companion will be permitted to address the hearing and to confer with you during the hearing but they will not be permitted to answer questions on your behalf.  You should inform the chair of the hearing in advance of the identity of your chosen companion.

For your reference, a copy of the Company’s disciplinary procedure is attached.

Since the Company views the allegations against you as gross misconduct offences, I must inform you that the outcome of this disciplinary hearing could result in your summary dismissal from employment in accordance with the Company’s disciplinary procedure.

If you or your chosen companion is unable to attend this disciplinary hearing you are asked to contact Nigel Marsh as a matter of urgency so that an alternative date and time can be scheduled.  You should take all reasonable steps to attend the hearing.  Failure to attend without good reason could result in the hearing being held and a decision being taken in your absence.

After the disciplinary hearing, you will be informed in writing of the Company’s decision.

Yours sincerely

Sarah Richmond″

(iii)	The tribunal was shown and examined the contractual documentation including the documentation referred to in the second set of bullet points in the above correspondence.  It was also apprised of the relevant disciplinary procedure which included a reference under “gross misconduct”, to:- 

			″falsification of records or this employment contract″.

(iv)	It is also clear to the tribunal that both the claimant and her representative regularly emailed Nigel Marsh in relation to the ongoing grievance and disciplinary matters and that these together with other correspondence emanating from the respondent, were the subject of instructions from Sarah Richmond to Nigel Marsh who then drafted the correspondence on the respondent’s behalf.  It is also clear to the tribunal that there was considerable confusion in the period leading up to and including the disciplinary hearing held on 24 November 2014 following the rejection of the claimant’s grievance on 17 November 2014.  This is typified by email correspondence sent by Davy Thompson of Unite on behalf of the claimant to Nigel Marsh at 15.17 pm also on 24 November 2014, which includes the following:-

	″I refer to your email correspondence of Fri 14th November issued to our member Jill Porter with attached copy of the policies and procedures however with no acknowledgement of request to reschedule hearing.  Important to note correspondence issued on 14th November made reasonable request to reschedule grievance hearing due to the delay on behalf of the company in providing requested policies and procedures.  It now seems apparent that the company did not wish to engage in hearing the formal grievance regarding serious [transgressions] by the company but instead conducted a grievance hearing raised by the employee without the employee present with no indication that the rescheduled date was not agreeable.

	Furthermore it is apparent that the company continues to threaten our member whilst invoking disciplinary sanctions in retaliation for raising a formal grievance.  Previous threats of disciplinary action would not be accepted and furthermore most recent threat surrounding a spurious claim of [perjury] of an employment contract [will] not be tolerated.  To date Jill has been provided with [numerous] versions of word documents by the company which have been amended in an effort to alter terms and conditions of employment, our member provided PDF contract of employment signed by all parties and consistent with the actual working arrangements.

	I will be available to meet with the company on Thur 28th Nov @ 09.30 or alternatively Wed 3rd December ‘14 @ 14.30 to discuss the same, I will await your confirmation″.

(v)	At all times before the tribunal the claimant absolutely rejected any allegation of having forged the contractual documentation.  Equally, albeit in the absence of Sarah Richmond, Mr Marsh, who had conducted an examination of the contractual documentation, strongly asserted that the claimant had forged contractual documentation.

(vi)	It is essential to reproduce the dismissal letter dated 25 November 2014 as follows:-

″Dear Jill

Further to your disciplinary hearing held on 24th November 2014 regarding the forging and replacing of page 2 of your employment contract dated 1st February 2012 which was signed on 30th April 2012, this letter confirms the termination of your contract of employment without notice with effect from 25th November 2014.

You did not attend the hearing.

The Company believes it is left with no alternative other than to summarily dismiss you from its employment on the ground of gross misconduct.  The gravity of your misconduct is such that the Company believes the trust and confidence placed in you as its employee has been completely undermined.

The Company would refer you to the following aspects of your conduct which are, in the Company’s view, wholly unacceptable and which have led to your summary dismissal:

•	You have forged and replaced page 2 of your employment contract dated 1st February 2012 which was signed on 30th April 2012.  This forgery contained 20 differences from the original page.  This forgery was produced in an attempt to get your working week changed from Monday only to Monday and Friday.

Your P45 will be sent to you in due course and you will be paid the following amounts:

(a)	All pay up to and including the effective date of termination of your employment.

(b)	A sum in respect of accrued but untaken annual leave entitlement.

You have the right to appeal against the Company’s decision if you are not satisfied with it.  If you do wish to appeal, you must inform the Company in writing in accordance with the Company’s Disciplinary Procedure.  If you do appeal, the Company will then invite you to attend an appeal hearing which you must take all reasonable steps to attend.

Hearing conducted by: Nigel Marsh

Yours sincerely
Sarah Richmond″

(vii)	In further correspondence dated 27 November 2014 enclosing the claimant’s final payslip, her P45 and other documentation, including page 2 of the employment contract entitled, ″the employer to make deductions″, it was asserted that the claimant owed Sarah Shoes £646.00 for goods purchased on account dating back to May 2014 and that the respondent was retaining £569.67 from a final payment of the claimant’s wages to pay off part of the balance allegedly owed.  The company also requested the claimant to pay the outstanding difference of £76.33 at the earliest possible opportunity.  In the absence of Sarah Richmond, the tribunal accepts the claimant’s evidence that she in fact owed the company nothing.  The tribunal is satisfied that she is entitled to a sum of £569.67 in respect of final pay owed by the respondent.

(viii)	The claimant emailed Nigel Marsh on 11 December 2014.  The tribunal notes that the email was addressed to “Sarah” and was clearly intended for Sarah Richmond’s attention.  Nigel Marsh telephoned Sarah Richmond to inform her that a notice of appeal had been received.  She did not request a copy of the correspondence and maintained that the claimant had not appealed the decision directly to the respondent, in accordance with the Respondent’s procedures.  The manner of appeal is set out in the last paragraph of the dismissal letter, reproduced above.

(ix)	The correspondence requesting an appeal, dated 11 December 2014, states as follows:-

″Sarah,

I refer to your correspondence on Fri 25th November informing of summary dismissal.

Important to note my union representative issued correspondence on 24th November outlining the breach in due process whilst advising any attempt to unfairly terminate my employment by alleging further spurious claims of gross misconduct would be deemed unacceptable.

I am formally appealing;

1)	Grievance Hearing held without my presence were [sic] I still await confirmation of request for appeal.

2)	Disciplinary Hearing held without my presence although reasonable requests made by my union representative were ignored by the company to exclude me from the process.

It’s apparent there has been a deliberate attempt on behalf of the company to diminish my terms of my employment without consent, once I raised a formal grievance the company made every effort to bully and intimidate my position whilst showing no regard for [my] rights of employment.  The company has manufactured spurious claims of gross misconduct in a process that is clearly prejudiced and flawed.

I await your reply for notification to appeal hearings for both of the above.

Regards,

Jill″

(x)	At the outset of the hearing, the tribunal enquired as to the position regarding the appeal.  The claimant had not received a response to her request prior to presenting her claim to the tribunal on 23 February 2015, or at any time thereafter up to the hearing itself.

(xi)	The respondent did not allege that the claimant had failed to mitigate her loss.  The tribunal also carefully examined and clarified the claimant’s claim for loss as set out in the Schedule of Loss.

SUBMISSIONS

6.	The tribunal carefully considered the oral submissions made on behalf of both parties together with the written submissions provided by the claimant’s counsel, which are appended to this decision.

THE LAW

7.	The tribunal considered the relevant provisions in the Employment Rights (Northern Ireland) Order 1996 (“the Order”) relating to dismissal and automatic unfair dismissal under Article 130A.  It also considered the requirements in relation to the statutory procedures laid out in the Employment (Northern Ireland) Order 2003.  The relevant legislative provisions, other than Article 130A, are adequately set out in part of Mr Friel’s written submissions appended to this decision.

CONCLUSIONS

8.	The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

	(i)	The provisions contained in Article 130A of the Order apply.  The tribunal is satisfied, by virtue of Article 17 of the Employment (Northern Ireland) Order 2003, that the claim is one to which the statutory procedures apply.  Step 3 of the procedure requires the employee to inform the employer of his wish to appeal following which the employer must invite him to attend a further meeting.  The DDP was not completed before the claim was presented to the tribunal and the non-completion of the statutory DDP was wholly or mainly attributable to the failure by the respondent to comply with Step 3 of that procedure.  Failure to comply with a minimum statutory dismissal procedure makes a dismissal automatically unfair.

	(ii)	Although not essential, it is suggested that a tribunal, having made a finding of automatic unfair dismissal, should record findings in the alternative on “ordinary” unfair dismissal.

	(iii)	Where a dismissal is in breach of the statutory dismissal procedures and therefore automatically unfair under Article 130A(1) of the Order, the principles laid down in Polkey v AE Dayton Services Ltd (1998) ICR 142, apply in full (ie, a deduction of 0%-100% can be made to reflect the percentage chance of dismissal).  In the absence of Sarah Richmond, and taking into account the tribunal’s findings of fact and the claimant’s absolute denial of forgery in relation to the contractual documentation, and the respondent’s failure to afford her an appeal against her dismissal, the tribunal is not satisfied, if an appeal had been afforded, that the outcome would have been the same.  In these circumstances it does not consider it appropriate to make a reduction in any compensatory award.

	(iv)	A consideration of a breach of procedures other than statutory procedures can only be considered if the statutory DDP is complied with (see generally Software 2000 Ltd v Andrews (2007) IRLR 568).  Any reliance by the respondent on its own procedures cannot therefore be permitted if Step 3 of the DDP has not been complied with.

	(v)	The tribunal is further satisfied that the respondent’s failure to afford the claimant an appeal against her dismissal was a flagrant breach of the statutory DDP.  By virtue of Article 17 of the Employment (Northern Ireland Order) 2003, the tribunal considered it just and equitable in all the circumstances to increase any compensatory award by 50%.  The tribunal is also satisfied that it is just and equitable to also award the claimant 12 weeks’ net pay in respect of future loss.

	(vi)	Apart from the finding of an automatic unfair dismissal under Article 130A of the Order, the tribunal in this case, is satisfied, in any event, that the dismissal would be unfair under the statement of issues in paragraph 15 of Rogan, which the tribunal sets out, duly adapted, as follows:-

		(1)	Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

(a)	Has the respondent shown that the reason (or principal reasons) relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

			(b)	Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

(i)		Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

(ii)		At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

			(c)	Was the dismissal a fair sanction in the circumstances?

			(d)	Was the claimant afforded an effective right of appeal in the circumstances?

		The tribunal is satisfied that it has insufficient evidence before it, in the absence of Sarah Richmond, to answer questions (b) and (c) otherwise than in the negative.  Undoubtedly, question (d) has to be answered in the negative.  The dismissal was therefore not within the band of reasonable responses in all the circumstances of the case.

	(vii)	The tribunal awards the claimant the sum of £9,906.67 made up as follows:-

		Basic award 			8 x £136.00			=	£1,088.00

		Loss of statutory rights					=	£   150.00

		Compensatory award from 25/11/2014 - 29/06/15
		22 weeks x £136.00 (taking into account 8 weeks’ 
		notice pay of £1088.00)					=	£2,992.00

		Amount for future loss (£136.00 x 12)			=	£1,632.00

		Total compensatory award					=	£4,774.00

		Uplift on compensatory award for respondent’s 
		failure to follow the relevant procedures
		(£150 + £2,992.00 + 1,632.00) = £4,774.00 x 50%	=	£2,387.00

		Total compensatory award					=	£7,161.00

		Amount due for final salary payment			=	£   569.67

		Total monetary award to include 
		basic award, and notice pay (£1088)			=	£9,906.67

	(viii)	The Employment Protection (Recoupment of JobSeeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.  The award is therefore subject to recoupment of JobSeeker’s Allowance from 29 January 2015 to 29 June 2015, totalling £824.79.

	(ix)	The attached Recoupment Notice forms part of the decision of the tribunal.

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

Employment Judge

Date and place of hearing:  29-30 June 2015, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 361/15

CLAIMANT:	Jill Porter

RESPONDENT:	Shoe Retailers UK Limited
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 of 	9906.67	
(b)  Prescribed element of 	824.79	
(c)  Period to which (b) relates:	29/01/15 to 29/06/15	
(d)  Excess of (a) over (b)	9081.88	

	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.