THE INDUSTRIAL TRIBUNALS

CASE REF:	2251/14

CLAIMANT:			James Rafferty

RESPONDENT:		ADN NI Ltd

DECISION
The unanimous decision of the tribunal is that:-

(1)	The claimant was unfairly dismissed and the tribunal makes an award of compensation to be paid by the tribunal to the claimant in the sum of £15,131.13.

Constitution of Tribunal:
Employment Judge:	Employment Judge Drennan QC
Members:			Mr B Collins
				Mr I Foster

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr G Keenan, Accountant for the respondent company.

Reasons

1.1	The claimant presented a claim to the tribunal on 1 October 2014 for unfair dismissal and/or notice pay, following the termination of his employment by the respondent.  The respondent presented a response to the tribunal on 17 October 2014, in which it denied liability for the claimant’s claims on the grounds that he had been dismissed for gross misconduct.

1.2	At the commencement of the hearing, the claimant confirmed, following discussion, if the tribunal found his dismissal was unfair, that he wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Reinstatement and/or Re-engagement, pursuant to the provisions of                                  Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

1.3	In accordance with the tribunal’s normal case-management procedure, the parties had been ordered at a Case Management Discussion on 21 November 2014, as set out in the Record of Proceedings, dated 25 November 2014, to prepare and exchange witness statements.  The claimant did not comply with the said order.  The respondent had prepared and exchanged witness statements; but the tribunal was concerned, having taken into account the terms of those witness statements, that the respondent’s witness statements, which were all in similar terms did not deal properly or at all with some of the issues the tribunal would have to determine in relation to the claimant’s claim and that there would inevitably require to be further oral evidence given by the respondent’s witnesses during the course of the hearing.  In light of the terms of the overriding objective and having taken into account the respondent was not legally represented and, as a consequence, did not appear to fully understand what was required to be contained in the witness statements, and after submissions by both the claimant and the respondent’s representative, the tribunal decided that all witnesses would give their evidence orally and not by way of the witness statement procedure as previously ordered by the tribunal at the Case Management Discussion referred to above; but with the respondent’s witnesses to be at liberty to refer to any of their said witness statements during the course of the proceedings, insofar as it was considered necessary and appropriate in the circumstances.  Before commencing the hearing, the tribunal ensured the claimant had read the respondent’s witness statements, together with all the documents contained in the trial bundle prepared by the respondent, which had been amended to include some pay-slips from the claimant’s new employer.

1.4	It was agreed, for the purposes of these proceedings, that the claimant, who was born on 6 August 1962, commenced his employment at the Glenpark Bar (‘Glenpark’) on or about 1 March 1991 and that he had continuity of employment from that date, as a consequence of the TUPE Regulations, following the relevant transfer of the business, which was carried out at Glenpark, to the respondent on or about 30 June 2011; and that, if the claimant was unfairly dismissed by the respondent, the respondent was liable for any such dismissal.  

	It was further agreed the claimant’s employment with the respondent at Glenpark was terminated by the respondent on or about 2 July 2014 and that, at that time, he was earning £347.76 gross per week and £290.74 net per week.  It was further not disputed by the parties the claimant had obtained new permanent employment at McKenna’s Bar from on or about 27 November 2014, at an average wage of £260.00 gross and £247.00 net per week.

1.5	It was not disputed the respondent did not have a written disciplinary procedure; but it contended, in evidence to the tribunal, that at all times relevant to the dismissal of the claimant it had consulted/was in contact with the Labour Relations Agency, from whom it had sought assistance.  

1.6	The tribunal heard oral evidence from Sean Rafferty, Dorothea Burns and Gerard Keenan on behalf of the respondent; and from the claimant.

2.1	In considering the evidence given to the tribunal by the parties, as set out above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, the relevant CCTV and audio-recording evidence shown and/or listened to at the hearing, together with the oral submissions made by the claimant and the respondent’s representative at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim, as set out in the following sub-paragraphs.

2.2	Following the takeover by the respondent of the Glenpark on 30 June 2011, the respondent purchased all stock and commenced to run the Bar.  An experienced stock taker was employed to do a stock take on the last Monday of every month.

	An initial problem was detected, at the beginning of 2014, after a year end stocktaking exercise was completed, which suggested shortages within the stock.  However, the respondent decided to take no further action at that time, because it was considered errors could have arisen as the stocktaking exercise took place in the busy Christmas/New Year period and this might have accounted for the discrepancies revealed in the exercise.  Unfortunately, in the following months similar stock shortage results were obtained in relation to both bar and off sales.  The stock taker was satisfied these were not isolated incidents and there was a problem which required to be investigated further.  

	In the stock results for January and February 2014, similar shortages were recorded.  In February 2014, the shortage was over £2,000.00, which was having very serious financial consequences for the business.  As a result, a meeting with all members of staff was held on 10 March 2014 and they were made aware of the stock problems and the staff were given a general verbal warning about loss of stock.  On 12 May 2014, staff were told at a further meeting that new CCTV cameras had been installed in the premises to try and uncover the ongoing problems in relation to stock.  The May 2014 stock results revealed a further shortage at the levels seen in previous months and the respondent decided to engage the services of an external auditor, Mr Sean Rafferty.  Mr Rafferty is an experienced auditor, having worked for seven years as an auditor in a leading car suppliers in Northern Ireland.  

2.3	Mr Rafferty began his investigation to see if he could establish the reason for the problem that had emerged in the preceding months, as set out above.  The tribunal is satisfied he was not asked at that time to look, in particular, at the actions of any one employee of Glenpark.  After an initial check of the delivery and accounting processes in place, he was satisfied that the problem was internal and not external and the problem did not arise from the actions of the delivery drivers or the stock taker.  He also examined CCTV footage.  Following a full stock count on 4 June 2014, covering a period of some nine days, a shortage in excess of £800.00 was identified by him.  

2.4	As a result of his investigation and the viewing of CCTV evidence from the preceding period, it was decided to call a staff meeting, followed by a meeting with individual members of staff on 18 June 2014, including the claimant.  No details of what was to be discussed at the individual meetings was given at the staff meeting.  The tribunal was not presented with any evidence relating to the meetings with other members of staff or the results of same.  Mr Sean Rafferty was present at the meeting with the claimant, together with Mrs Dorothea Burns, the Managing Director of the respondent and her husband, Michael Burns, the Manager of the respondent.  The meeting with the claimant lasted some 15 – 20 minutes.  

2.5	At the commencement of the meeting, the claimant was told, in a pre-prepared statement, that, following investigation the respondent believed that theft had been occurring at the premises [tribunal’s emphasis] for some time, which was reflected in the stock reports.  He was further told the respondent had CCTV footage of his drinking after hours without approval and this was a serious offence and there was also CCTV footage of him drinking whilst on duty and this in itself was a breach of contract.

	The claimant was then asked about a number of specific pre-prepared questions, namely:-

“1.	You have been drinking after hours on the premises with members of the general public which is illegal and can result in our company losing its liquor licence.

 2.	You also received calls from our alarm company referencing the late opening hours which you ignored.

 3.	You had your son serving alcohol who is below the national age requirement for serving intoxicating liquor to the general public.”

The claimant was given no indication, prior to the meeting, he was to be asked about any of these matters.

In response to these questions the claimant replied in the following terms, as set out in the notes of the meeting:-

“1.	I was not aware that having a drink after work was against policy.  As for drinking during working hours I dont drink during working                  hours ... .

 2.	04/05/14 was the on I had to go for with the keys.  Emmett failed to bring keys.  Alecs had to go to the house to get keys.

	11/05/14 Saturday night 2 minutes after the time we supposed to be close at 3.00 dont know if we sere waiting on taxis.

	01/06/14 I think if you check that I was off that night.

 3.	No response.”

The pre-prepared statement suggested the claimant was also told – ‘along with all of the above issues we would also like to talk to you about quite a few incidents regarding you staying after work and drinking and the payment of said drinks, we would also like to discuss an incident regarding the transfer of stock between you and a member of the general public’.  It was not clear to the tribunal whether the above was actually stated to the claimant’ but on balance, given it was in the                pre-prepared statement, it decided they probably were; but, significantly, on the notes there is no indication of any response by the claimant to these matters.  

The notes of the minutes concluded by stating:-

	“Anything else you want to say?

I have nothing to hide.  I am straight with you’s.  I 100% support you’s.  There is no way I would take anything on you’s.”

2.6	Further, as set out in the pre-prepared statement, and confirmed in the notes, the meeting concluded with the respondent informing the claimant he was suspended on full pay until the respondent completed its investigation.  He was told he would receive a letter the next day ‘detailing the outcome of today’s meeting, included with this letter will be a copy of everything that has been discussed today for you to review and the procedure will be then to invite you back for your disciplinary hearing where you will have the opportunity to discuss everything that has taken place in this current meeting’.  The tribunal found it noteworthy this was already set out in the pre-prepared statement and has little doubt, regardless of the claimant’s response to the questions referred to above, it was always intended to suspend the claimant on full pay pending further investigation and then to invite him back for a disciplinary hearing.

2.7	By letter sent to the claimant on or about 18 June 2014, by Dorothea Burns, the claimant was told, inter alia, insofar as relevant and material:-

		“Ref Suspension from work

Following from our meeting today 18 June 2014 at 10.31 am.  We have now completed our investigation and review of the CCTV footage [tribunal’s emphasis].  Therefore we would like to invite you for a disciplinary hearing ...

The reason behind such a hearing is that you face a Gross Misconduct Charge ...

We wish to hear your side of the events and the CCTV footage will be shown to highlight the points in question.  From this we will establish the best way forward.

Please note a gross misconduct charge can result in immediate dismissal from your job.

...

The meeting has been arranged for Monday 23 June at 10.00 am.

Regards.”

The letter does not state what, if anything, was enclosed with the letter.  The respondent’s witnesses were somewhat unclear in their evidence but sought to suggest the typed up notes of the meeting on 18 June 2014 were enclosed together with a copy of the pre-prepared statement referred to previously.  The claimant was also unsure what he received, if anything, with this letter.  Not without some hesitation, the tribunal concluded the notes of the meeting of 18 June 2014 were enclosed, with the letter as referred to above but not the pre-written statement (see later).  

The tribunal is not satisfied that, before this letter was sent to the claimant, the investigation had been completed  and the CCTV reviewed.  Indeed, it believes this was an ongoing process up to the date of the disciplinary hearing itself.

Sean Rafferty accepted, in evidence to the tribunal, the stock loss of an average of £2,000.00 per month, as revealed from his investigation, was not down to the actions of the claimant but he suggested they played a significant part.  No details of any relevant conduct and/or disciplinary actions taken against any other members of staff were provided to the tribunal by either party; albeit it was suggested by Mr Sean Rafferty that other members of staff were disciplined.

2.8	Subsequently, the claimant was notified the disciplinary hearing was to be held, after it was re-scheduled at his request, on 24 June 2014 at 10.00 am.  This was subsequently changed to 2 July 2014 at 10.00 am in an undated letter sent to the claimant prior to the re-arranged disciplinary hearing.

	In the letter, it is stated:-

		“...

Please find enclosed copy’s of the following requested by yourself and your representative.

•	Copy of CCTV (video)

•	Copy of handwritten notes

•	Copy of tape (audio)

•	Permission before Taping (see audio and full notes already sent)

From all of the above please see below the charges relating to same.

•	G4S alarm response

•	Pints consumed after hours

•	Members of public served drink without payment	[Tribunal’s emphasis]

•	Drinking during working hours

•	Coke removed from off sales

•	Your son serving alcohol

•	Goods placed in bay at close of business

•	35 cl bottle of Smirnoff transaction

•	Company’s money’s removed from off sales till.” [tribunal’s emphasis]

Again, as with the letter sent on or about 18 June 2014 there was considerable uncertainty by both parties what was enclosed with this letter.  The tribunal has concluded the reference to ‘handwritten notes’ and ‘full notes already sent’ confirms its conclusion, as set out above, that, in the previous letter, the claimant had been sent only the typed up notes of the meeting of 18 June 2014 and the handwritten notes of the said meeting were sent with this letter.  However, it accepts, as set out previously, what is set out in the pre-prepared statement was stated to the claimant at the meeting on 18 June 2014; but it is  not satisfied it was sent at any time to the claimant, prior to the disciplinary hearing.  

2.9	The disciplinary hearing was held on 2 July 2014.  Mr Sean Rafferty was present, as note taker, together with Mrs Dorothea Burns, the Managing Director , together with her husband, the manager, Mr Michael Burns, and the claimant.  There was a set of pre-prepared questions, prepared before the meeting, relating to the matters set out in the undated letter, referred to in the previous sub-paragraph.

	Although questions were asked about all these matters and the claimant’s responses were written down, however, as seen later, it was only two of the said charges which were relevant to the decision by the respondent to dismiss the claimant for gross misconduct, namely:-

		“Members of public served drink without payment

		Company’s money’s removed from off sales till”

2.10	In relation to the charge - ‘Members of public served drink without payment’ - the tribunal is satisfied, from the document setting out the pre-prepared questions, this charge was read out to the claimant by Mrs Burns.  The claimant responded to the charge.  The notes, which were clearly not verbatim, recorded his response.  ‘Tracy Rafferty.  To save yourselve a £5 taxi fare’.  The tribunal is confirmed by this note, the claimant admitted he had given Tracy Rafferty a beer, as he had asked her to wait and drive the staff home rather than the staff having to arrange for a taxi, which would normally be £5.00, paid for out of the till, after putting a note in the till, and thereby saving the respondent the taxi fare.  There seems to have been little or no discussion with the claimant in relation to the charge, the facts of which, in essence, were not disputed.  Prior to this, the claimant had not been told the respondent considered these specific actions by him to be that of theft.  However, the tribunal is satisfied Mrs Burns, at some stage during the limited discussion on the charge, told the claimant ‘we deem this as theft’, which the tribunal has no doubt the claimant made clear he did not accept, on the basis of the facts as admitted by him, as set out in his response.

2.11	In relation to the charge – ‘Company’s money’s removed from off sales till’ – again the tribunal is satisfied, from the document setting out the pre-prepared questions, this was read out to the claimant by Mrs Burns and there was reference to the CCTV footage relating to the incident, which footage the claimant did not dispute, in evidence, he had seen before the hearing.  The claimant did not dispute, and it was to be seen on the CCTV, that he had taken money, namely £20.00 in total in £1.00 coins, out of the off sales till, in order to obtain change for the ‘slot fruit machine’ but he had replaced the said change with a £20.00 note before finishing his shift after playing the machine.  Indeed the tribunal is satisfied the claimant removed the said monies in two ‘instalments’ and may have left some sort of ‘IOU’ note in the till on the first occasion, albeit the evidence was somewhat unclear on that issue.  Significantly, Mrs Burns in her evidence did not dispute the claimant, as he had said, had replaced the £20.00 before he left the premises.  This was consistent with what was seen on the CCTV evidence shown to the tribunal in the course of the hearing.  Mrs Burns maintained, although he had returned the £20.00 before he left at the end of his shift, he should not have taken any of it out of the till in the first place and therefore this was theft in her eyes.  The claimant suggested, in evidence, what he did was common practice and, indeed, frequently, an ‘IOU’ type document would be placed in the till, if necessary, if the money was not returned at the end of the shift.  This was denied by Mrs Burns; In any event, whether an IOU was placed in the till on the first occasion was of no relevance to Mrs Burns, as she considered to have taken the money out of the till in the first place was theft.

There seems to have been little or no discussion with the claimant in relation to this charge, the basic facts of which, in essence, he again did not dispute.  The tribunal is satisfied Mrs Burns, at some stage during the limited discussion, told the claimant the respondent considered this was theft but the claimant made it clear in reply, as he explained in evidence, ‘any money I took out I replaced with notes and I never once stole from the company’.  This, again, was the first time the claimant was told the respondent considered his actions, in relation to this charge, to be that of theft.  Although the staff had been given a general warning about loss of stock and installation of CCTV in the premises, there was no evidence of any specific warning given to the claimant or staff in general about the matters the subject-matter of these specific charges.

2.12	The meeting was then suspended for a short period and there was a discussion involving Mrs Burns and Mr Burns at which Mr Sean Rafferty was also present.  However, the tribunal is satisfied the final decision was taken by Mrs Burns and she decided that, because of his gross misconduct in respect of his actions in relation to these charges, which in her view amounted to theft, the claimant had to be dismissed; and she did not therefore consider any other sanction other than dismissal was appropriate in the circumstances.  She did not take into account, in particular, his lengthy service of the claimant with the respondent and its predecessors.  There was no evidence of any previous disciplinary record.  To make a finding of theft had potential risks to the claimant’s future employment; but this was not considered by Mrs Burns; although fortunately the claimant has obtained alternative employment, albeit at a reduced salary (see later).

2.13	When the disciplinary hearing resumed, Mrs Burns orally announced her decision to the claimant in a pre-prepared written statement, which was subsequently provided to him, as set out below (see later).  No reference was made or in the note to the other charges.  In these circumstances, it is not necessary to refer to them in any detail, save to state that the claimant provided some explanation for each of them, which was largely accepted by the respondent; and, even when it was not, it was accepted by Mrs Burns, in evidence, she did not consider these charges, either separately or together, were sufficient for him to be dismissed or to be given any other sanction in relation to them.

	In the written statement it was stated as follows:-

“We have reviewed all of the above charges.  We now deem these as gross misconduct charge in the form of theft.		[Tribunal’s emphasis]

		These relate to charges

3.	Memeber [sic] of Public served drink without payment on 8th June 2014

9	Company moneys removed from off sales till on 13 June 2014

This has now resulted in your immediate dismissal from your post.

Your remaining pay including holiday pay will be paid to you by the means of a cheque.  This will  be sent out to you by recorded delivery along with today’s notes and the information on the right to appeal.”

2.14	By letter dated 3 July 2014 the claimant appealed the decision stating:-

		“ ...

Since I have not been provided with written reasons for dismissal, I am unable to give precise grounds of appeal.  I would, however, state that I believe the decision to dismiss me is both unfair and unreasonable and that all the facts of the case have not been fully taken into due consideration.

I would be grateful for prompt delivery of written decision and with date, time, venue for internal appeal.

... .”

	In a reply to this letter, it was stated:-

“The reasons for your dismissal are as stated at the disciplinary meeting are as follows:-

•	G4S alarm response

•	Pints consumed after hours

•	Members of public served drink without payment	

•	Drinking during working hours

•	Coke removed from off sales

•	Your son serving alcohol

•	Goods placed in bay at close of business

•	35 cl bottle of Smirnoff transaction

•	Company’s money’s removed from off sales till

See attached a copy of the statement that was read to you at the meeting relating to your charges.  You are in receipt of all the information regarding these charges.

We have considered your appeal and we are now in a position to hear it on ... 7th July ... .”

The charges highlighted above were highlighted in the letter sent to the claimant by the respondent and the statement attached was the written statement, referred to in the previous sub-paragraph.  It is again apparent from the above letter that the highlighted conduct were the reasons for his dismissal and this was not disputed in evidence by Mrs Burns.

2.15	The appeal was heard on 7 July 2014 by Mr Gerard Keenan, the company accountant.  He is a fully qualified Chartered Accountant.  He does the monthly management accounts for the respondent but also for other companies.  He is the brother of the managing director, Mrs Burns.  In his evidence to the tribunal, he accepted, prior to hearing the appeal, he was aware that there was an investigation of the claimant’s conduct and there had been a subsequent disciplinary hearing, but he made sure he was not aware of any of the details of same and had not played any part in the process, so he could, if it was necessary to do so, hear and determine the appeal.  In particular, he emphasised to the tribunal in the strongest of terms, that, although before the commencement of the appeal hearing he had been informed of the claimant’s dismissal on a gross misconduct charge, he had not read any of the notes and/or documentation and/or watched the CCTV and/or listened to the audio recordings, referred to previously and which had been prepared and used in connection with the claimant’s dismissal.  All of this, he said, was contained in a pack which had been made up for him – but which he did not open or consider before the appeal in any way.  He further said he did not want to know the precise gross misconduct charge, as he did not want to have a ‘tarnished view’ before conducting the appeal.  At the commencement of the appeal hearing, the claimant said he was appealing because he believed the decision was unfair and unreasonable considering the years of continuous service he had given the Bar.  Both Mr and Mrs Burns attended the appeal.  This only became apparent after Mrs Burns had given her evidence.  It was never explained what was the reason for their presence at the appeal or what role it had been intended they would play in the appeal or what role it had been intended they would play in the appeal.  Mr Keenan said that, at the commencement of the appeal, he had explained to the claimant the purpose of the appeal was to determine his appeal from the decision to dismiss him for gross misconduct and he had asked the claimant if he would like to say anything.  The claimant said ‘No’.  After Mr Keenan had reminded the claimant this was a very serious matter he again asked the claimant if he had anything to say.  In the absence of any response, Mr Keenan stated he took all the documentation/CCTV recording/audio recordings contained in the pack away with him to review everything, as he had not previously looked at any of it, as set out above.

2.16	It is necessary to note, at this point, this evidence was given by Mr Keenan before the tribunal looked at the relevant CCTV evidence and listened to the audio recordings of the hearings, including the appeal hearing.  On listening to the audio recording of the appeal, it became apparent to the tribunal, Mr Keenan had made it clear to the claimant, at the commencement of the appeal, and contrary to what he had previously told the tribunal in evidence, he had in fact looked at and considered all the said documentation, CCTV, audio recordings contained in the pack in relation to each of the nine charges, including the two charges upon which the claimant was dismissed.

2.17	The tribunal is satisfied that, at the appeal, the claimant did not dispute, as seen previously, the facts surrounding the charges but merely indicated he did not believe he had done anything wrong and therefore had not anything to apologise for.  The meeting was very short in the circumstances.  Mr Keenan accepted, in evidence when looking at the CCTV, he saw the claimant putting something back, which could have been the £20.00.  He emphasised to the tribunal, that, in his view, the claimant, having first taken the money out of the off sales till, for him that was theft.  Similarly, having given the customer a drink without payment that also was theft, regardless if it was because the customer had stayed to take the staff home and thereby saved the respondent the taxi fare.  He could see no reason not to dismiss in such circumstances.  Indeed, his views on these matters echoed those of his sister, Mrs Burns, whose decision was under appeal.

2.18	By letter dated 15 July 2014 the claimant was informed that the appeal was unsuccessful:-

“I am now writing to confirm that the decision made at your disciplinary hearing resulting in the termination of your employment still applies.”

2.19	The claimant was paid up until 2 July 2014 together with all holiday pay to which he was entitled, as set out in the letter of 3 July 2014, confirming his contract of employment had been terminated on 2 July 2014, with immediate effect due to the charge of gross misconduct.  The letter did not set out any further details of the reasons for this decision.  The claimant was not paid any notice pay.

2.20	The claimant, following his dismissal, attempted to find other employment and, in particular, in the Bar Trade following his dismissal but without success.  The tribunal has no doubt this task would have been made more difficult since the respondent had dismissed him for theft/dishonesty.  Fortunately, he has been able to find permanent alternative employment at another bar since 27 November 2014 at a reduced rate of earnings, as set out in Paragraph 1.4 of this decision.

Relevant law

3.1	Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

		“An employee has the right not to be unfairly dismissed by his employer.”

	Article 130 of the 1996 Order provides:-

“(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show –

(a)	the reason (if more than one the principle) for the dismissal; and

(b)	that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

		 (2)	The reason falls within this paragraph if it –

(a)	relates to the capability or qualifications of the employee for 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) if a duty or restriction imposed by or under a statutory provision.

		 ...

(4)	Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons 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 as treating it as a sufficient reason for dismissing the employee; and

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

		 (6)	Paragraph (4) is subject to Article 130A ... .”

	Article 130A of the 1996 Order provides:-

“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

(b)	the procedure has not been completed; and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

(2)	Subject to Paragraph (1) failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

	Article 118 of the 1996 Order provides:-

“(1)	The Notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –

				...

(c)	is not less than 12 weeks’ notice if his period of continuous employment is 12 years or more.”

3.2	Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.   These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal.  There are two alternatives, namely:-

(a)	standard dismissal and disciplinary procedures (DDP);or 

(b)	a modified DDP.

There was no dispute that the latter procedure was never applicable in this matter.  

Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-

“(i)	Step 1 –

A statement of grounds for action and invitation to meeting –

 (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 a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 – Meeting

(1)	Meeting must take place before action is taken, except in the  where the disciplinary action consists of suspension.

			(2)	Meeting must not take place unless –

			(a)	the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and

			(b)	the employee has had a reasonable opportunity to consider its 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

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

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

			(3)	The employee 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 its final decision.”

(ii)	There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-

				“Introductory 

				(11)	The following requirements apply to each of the procedures set out above (so far as applicable)

				 Timetable

				 (12)	Each step and action under the procedure must be taken without unreasonable delay.

				 Meeting

				 (13)	

				 (1)	Timing and location of meetings must be reasonable.

				 (2)	Meetings must be conducted in a manner which enable both employer and employee to explain their cases.

				(3)	In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”

		(iii)	Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-

				“(1)	If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, …               non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”

		(iv)	Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.

		(v)	Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.

3.3	The Employment Appeal Tribunal, in the case of Venniri  v  Autodex Ltd [UKEAT/0436/07] at Paragraph 34, held the tribunals are under duty to consider whether or not a dismissal is automatically unfair (under the equivalent provisions in the Employment Rights Act 1996 [which then applied in Great Britain] to Article 130A of the 1996 Order), even where that allegation has not been expressly pleaded, which was the case in the present proceedings, on the grounds that these provisions are part of the ‘essential fabric of unfair dismissal law’.  The Employment Appeal Tribunal has also held, in the case of Metrobus Ltd  v  Cooke [UKEAT/0490/06] (Paragraphs 27 – 29), where a tribunal has made a finding of automatic unfair dismissal, pursuant to similar provisions in the Employment Rights Act to Article 130A(1) of the 1996 Order, it may be ‘useful’ for the tribunal to record its judgment, in the alternative, on the ‘ordinary’ unfair dismissal allegation, (ie pursuant to Article 130 of the 1996 Order).

3.4	Failure to comply with the relevant statutory dismissal procedures has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or in an adjustment downwards (in the case of default by the employee).  Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the tribunal considers it just and equitable, up to 50%.  However, under Article 17(4) of the 2003 Order, a tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable.  Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in an unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order).

3.5	Although the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales are not binding on this tribunal; however, the tribunal, in the absence of any relevant decisions in the Court of Appeal in Northern Ireland in relation to the said statutory dismissal procedures, subject to what is stated later in this decision, has found the decisions of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales, in relation to such matters, persuasive and appropriate to follow – in particular, in circumstances where the decision of the Employment Appeal Tribunal and/or the Court of Appeal in England and Wales relate to provisions, which were then applicable in Great Britain, and which were in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made above.  The Employment Appeal Tribunal and/or the Court of Appeal in England and Wales has been reluctant to set down principles that fetter the discretion of a tribunal in relation to this issue of the uplift and reduction of the compensatory award in relation to a finding of automatic unfair dismissal (see Cex  v  Lewis [UKEAT/0031/07].

	In Metrobus Ltd  v  Cooke [UKEAT/0490/06] the EAT did not interfere with an uplift of 40% where the employer had ‘blatantly’ failed to comply with the obligation to send a Step 1 letter and acknowledged that the uplift provisions were more ‘penal than compensatory in nature’.  In Davies  v  Farnborough College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift could apply where there had been a complete and deliberate breach of any procedures.  Subject to what is set out below, ultimately the extent of any uplift would appear to be a matter within the discretion of a tribunal, having regard to all material circumstances, which are unlimited.  Further, the statutory provisions do not require the tribunal to start at an uplift of 50% and work downwards in accordance with evidence of mitigation provided by the respondent (see Butler  v  GR Carr (Essex) Ltd [UKEAT/0128/07].  However, in the case of Aptuit (Edinburgh)  v  Kennedy [UKEATS/0057/06], the Employment Appeal Tribunal (in Scotland) held that, when exercising its discretion to uplift an award, the only circumstances which the tribunal may take into account are those surrounding the failure to complete the statutory procedure.  In the case of McKindless Group  v  McLaughlin [2008] IRLR 678, the Employment Appeal Tribunal (in Scotland) has again confirmed that, in exercising the discretion the tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure which can properly be regarded as making it just and equitable that the employer should be penalised further.  Somewhat controversially, the EAT held that an uplift should not follow if the employer does not explain the reasons for the failure to comply, on the grounds that the statutory provisions do not oblige the employer to explain the failure.

	In the case of Virgin Media Ltd  v  Seddington & Another [UKEAT/0539/08], Underhill J applied the McKindless Group case and confirmed that a (if not the) primary factor requiring to be taken into account in exercising the discretion in relation to whether an uplift was applicable, related to how culpable the failure to employ the statutory procedures was.  Underhill J accepted that, in some circumstances, failure to employ the statutory procedures might speak for itself.  In addition he said that the issue of uplift should not be approached too mechanistically, as had occurred in the particular facts of that case.  In Abbey National Ltd  v  Chagger [2009] IRLR 86, Underhill J held that it was legitimate for a tribunal to take into account the overall size of an award, when deciding the amount of an uplift.

	In the case of Wardle  v  Credit Agricole [2011] EWCA Civ 545, Elias LJ reviewed all the authorities and stated:-

“18	Before answering this question, it is necessary to consider the principles which should inform a tribunal when exercising its Section 31(3) discretion.

 19	I confess that I do not find the sub-section at all easy to apply. In Chagger the Court stated that its purpose was to operate ‘as an incentive to encourage parties to make use of the statutory procedures’.  It is a stick rather than a carrot, and the sanction for failing to comply has a significant punitive element since failure leads to additional compensation irrespective of the adverse effect on the employee.  It is no doubt because the penalty should be commensurate with the offence that the EAT has expressed the view on a number of occasions that the degree of culpability is a highly significant factor when assessing the appropriate uplift.  Culpability will include such considerations as the extent of the breach and whether it is deliberate or inadvertent : see the observations of the EAT President, Underhill J, in Virgin Media  v  Seddington UKEAT/00539/08, Paragraph 20 and Lawless  v  Print Plus UKEAT/0333/09, Paragraph 10.

 20	Whilst I do not dissent from that analysis, I think it would be wrong to see the uplift purely in penal terms.  The breach does have adverse consequences for the other party.  In the case of a dismissal, the employee is deprived of the opportunity to persuade the employer, before the axe falls, that the dismissal would be inappropriate or unfair.  Instead he is compelled to go to law to vindicate his position.

21	The consequences of the breach for an employee will vary from case to case.  For example, it may be felt particularly harshly where the dismissal is for misconduct, and especially so if there are what turn out to be false allegations of fraud or dishonesty which can then only be successfully challenged in the tribunal, where they necessarily become aired in public.  In my judgment this would render the breach more culpable than would otherwise be the case and would be a potentially important factor justifying an uplift significantly above the 10%.

22	I do not think that the ability of the wrongdoer to pay is in itself a relevant factor when considering the degree of culpability.  Having said that, a large company which infringes the procedures will often be more culpable than a small business because it has less excuse for being ignorant of its obligations and the potential consequences of its actions.

23	The curiosity about these provisions - both as they affect the employer and employee - is that the sanction is defined by reference to the compensation awarded to the employee which is in turn a function of the employee's loss.  Yet that depends on a whole host of factors some of which are entirely fortuitous and have no bearing on the employer's conduct at all.  For example, if the employee is unfairly dismissed in flagrant and deliberate disregard of the procedures, but he secures equivalent employment immediately following the dismissal, the compensation will be very small and even the maximum uplift will only result in a very modest sum of money.  By contrast, an employer who inadvertently commits a relatively minor breach in circumstances where considerable loss is suffered will have to pay much more even if the uplift is limited to 10%.  The stick strikes more harshly on the wrong dog.  That, however, is what Parliament has enacted, and tribunals must seek to give effect to Parliament's intention, however difficult or arbitrary the consequences may appear to be.

24	In my view, some understanding of Parliament's intention can be gleaned by a careful consideration of the structure of the sub-section.  As the EAT has observed (eg in the Lawless case) the tribunal is not charged with fixing a percentage somewhere between 10 and 50% as it deems just and equitable.  Had that been the formulation then I can see that it may well have been appropriate for a tribunal to choose 10% for the least serious breaches and 50% for the most flagrant with the rest falling at the appropriate point within the range.  Rather the tribunal is enjoined to start with 10% and it must then consider whether it is just and equitable to increase that percentage and, if so, by how much.

25	As Lady Smith pointed out giving the judgment of the EAT sitting in Scotland in McKindless Group  v  McLaughlin [2008] IRLR 678, Paragraph 13, this requires a tribunal to explain what facts or circumstances surrounding the failure to comply make it just and equitable to go beyond the minimum at all.  This should not be an automatic response whenever the tribunal thinks that the breach is more than minor.  On the contrary, there must be something about the particular circumstances which justifies the conclusion that 10% would be inappropriate and ought to be increased.  The circumstances need not be exceptional, otherwise that word would have been used here as it is in sub-section (4), but in my judgment they must be such as to clearly justify concluding that the starting point of 10% would not adequately reflect the degree of culpability.

26	In my opinion an increase to the maximum of 50% should be very rare indeed.  It should be given only in the most egregious of cases.  An example given by Lady Smith in the McKindless case which would at any event get close to the maximum is where there is a clear finding that the employer is determined to dismiss the employee whatever the merits and has deliberately and cynically ignored the procedures in case they get in the way of his being able to do so.  However, the mere fact that the employer has ignored the procedures altogether would not in my view justify an increase to the maximum, although it would often justify some increase beyond 10%.

27	Once the tribunal has fixed on the appropriate uplift by focusing on the nature and gravity of the breach, but only then, it should consider how much this involves in money terms.  As I have said, this must not be disproportionate, but there is no simple formula for determining when the amount should be so characterised.  However, the law sets its face against sums which would not command the respect of the general public, and very large payments for purely procedural wrongdoings are at risk of doing just that.  The EAT referred to the case of HM Prison Service  v  Johnson [1997] ICR 275 when Smith J, as she then was, observed, with respect to the level of compensation for injury to feelings, that it was necessary to have regard to ‘the view which members of the public would have to the amount of the award’.  In my judgment, that is a fortiori the case where the award is either unrelated, or at least only partially related, to any specific injury to, or loss suffered by, the employee.

28	In considering the sort of sum which would be proportionate and acceptable, it is, in my view, of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages.  

...

29	I do not suggest that these are entirely analogous situations, but I think that save in very exceptional cases, most members of the public would view with some concern additional payments following an uplift for purely procedural failings which exceeded the maximum payable for injured feelings.”

In a recent case, before the Court of Appeal in Northern Ireland, in the case of Brinks Ireland Ltd  v  Hines [2013] NICA 32, one of the issues which the Court could have been required to consider on appeal was the uplift of 50%, in circumstances where the tribunal had found that the dismissal was unfair; but, in the event, the Court of Appeal remitted the case to the industrial tribunal to further consider the nature of the dismissal and, in light of same, the application (if relevant) of the said uplift provisions.  The industrial tribunal, upon remittal, decided the claimant was expressly, deliberately and unfairly dismissed and affirmed the earlier decision of a 50% uplift of the compensatory award.  This subsequent decision was not the subject of appeal.  In a decision in the Court of Appeal in the Northern Ireland, in the case of Lewis  v  McWhinney’s Sausages Ltd [2013] NICA 47, the provisions relating to an uplift, pursuant to Article 17(3) of the 2003 Order were also, inter alia, the subject-matter of the proceedings; but in the event, it was again not necessary for the Court of Appeal to make any observations on the said provisions, relating to uplift, when dismissing the appeal.  

3.6	In considering the statutory dismissal procedure, to which reference has been made above, in the case of Lewis  v  McWhinney’s Sausages Ltd [2013] NICA 47, in the course of his judgment, Morgan LCJ, delivering the judgment of the Court, referred to the requirements of these provisions, as referred to by the Employment Appeal Tribunal in the case of Alexander  v  Bridgen Enterprises Ltd [2006] ICR 1277, when he stated:-

“In Step 1 the employer merely had to set out in writing the grounds which lead him to contemplate dismissing the employee.  Under the second step the basis for the grounds was simply the matters which had led the employer to contemplate dismissing for the stated grounds.  The objective is to ensure that the employee is not taken by surprise and is in a position to deal with the allegations.  The letter of 20th of May 2010 identified the occasion on which the alleged insubordination occurred and identified verbal abuse as to the nature of the insubordination.  The letter was sent two days after the meeting of which a complaint was made so the appellant was in a good position to contradict any alleged statement or explain anything said by him.  In those circumstances the letter satisfied both of these tests so that no failure to comply with the statutory procedures arose in this case.  The statutory procedures do not require the employer to set out the evidence in respect of the matter as an issue although it can be helpful if the employer chooses to do so.”					(See Paragraph 23 of the judgment)

	(See also further Paragraph 3.17 of this decision in relation to the relevance of appeals in any dismissal procedure.)

3.7	In particular, in Alexander, the Employment Appeal Tribunal stated that the Step 1 statement should:-

“Do no more than state the issue in broad terms ... the employee simply needs to be told that he is at risk of dismissal (or, presumably, other disciplinary action) and why (Paragraph 38).  In conduct cases, the Step 1 statement will need to ‘[identify]’ the nature of the misconduct in issue, such as fighting, insubordination or dishonesty,  In other cases it may require no more than specifying, for example, that it lack of capability or redundancy.”

	(See further Cartwright  v  Kings College London [2010] EWCA Civ 146)

	In Sahatciu  v  DPP Restaurants Ltd [UKEAT/0177/06] it was held that ‘A widely pedantic reading of the DPP is as unattractive as an overly technical construction of a Step 1 grievance letter under the statutory grievance procedure (the statutory grievance procedure is now repealed in Great Britain and Northern Ireland)’.

	In the case of YMCA Training  v  Stewart [2007] IRLR 185, Underhill J, as he then was, referred to the statement as a statement in ‘headline terms’ – Paragraph 9.

	Somewhat surprisingly, in the case of Homeserve Emergency Services Ltd  v  Dixon [UKEAT/0127/07], the Employment Appeal Tribunal held that an employer’s letter had complied with Step 1 even where it did not say where that it was contemplating dismissal.  However, this was because, according to the Employment Appeal Tribunal, it was ‘implicit’ from a letter inviting the employee to a ‘formal disciplinary meeting’ for ‘breach of contractual obligations’ that it was contemplating with some disciplinary action.  However, in Zimmer Ltd  v  Brezan [UKEAT/0294/08] the Employment Appeal Tribunal held that a Step 1 letter was defective because it did not specifically inform the employee that he was at risk of dismissal (and, on the facts, that there was no context that could save it).  In the case of Draper  v  Mears [2006] IRLR 869, the Employment Appeal Tribunal held that it was sufficient, in a case involving dismissal for driving a vehicle after consuming alcohol, for the Step 1 letter, to refer only to ‘conduct which fails to reasonably ensure the health and safety of others’.  Indeed, the Employment Appeal Tribunal held that, where there is ambiguity over the content of the Step 1 letter, the tribunal is ‘entitled to look at the whole context’ in order to resolve any such ambiguity.  It may be thought that this is somewhat similar to the relevance of context, which was referred to by Elias P in the well-known case of Canary Wharf Management Ltd  v  Edebi [2006] IRLR 416, when considering the then somewhat similar provisions relating to the statutory grievance procedures (now repealed).  The Employment Appeal Tribunal held that looking at the whole matter in context, made it impossible for Mr Draper, who ‘knew full well the allegations against him before the Step 1 letter reached him’, to argue there had been non-compliance with the DDP that rendered his dismissal automatically unfair.  In Draper, the Employment Appeal Tribunal also noted that, while the Step 1 letter and the Step 2 meeting are separate matters, it may often be the case that Step 2 is complied with before Step 1.

	In YMCA Training  v  Stewart [2007] IRLR 185, the Employment Appeal Tribunal suggested that tribunals should not ‘be distracted by the fact that the parties have been following an internal procedure with more elaborate requirements and different terminology from those required by the statute : it is necessary to look between the parties own labels and focus on whether the substantial requirements of the statute, which are simple and non-technical terms, were or were not met’.

	In Cartwright, the Court of Appeal emphasised a prior oral exchange could not fill a gap in the statutory procedure since the procedure required a statement of the minimum information in writing stating, ‘if the opposite were true, it would mean an employer could send an employee a statement saying no more than ‘Re our discussion yesterday, please come to a meeting tomorrow to discuss it further’ and then proffer it as a sufficient Step 1 statement as proof the discussion had covered the headline information required to be included in such a statement’. The court also made clear the writing and sending of a Step 1 statement was an elementary exercise requiring minimal skill, and any employer familiar with the requirements had only himself to blame if he was unable to create and send the necessary statement.

3.8	In relation to the Step 2 meeting, Employment Appeal Tribunal in Alexander considered the nature of the information the employer must give to the employee in order to inform him of the ‘basis’ for the concerns in the Step 1 statement.  In particular, it noted the following:-

“(i)	To comply with Step 2, the information does not need to be in writing and can be given orally.					[Paragraph 39]

 (ii)	The information is ‘an explanation ... as to why the employer is contemplating dismissing that particular employee’.	[Paragraph 41]

(iii)	In misconduct cases, the information required involves ‘putting the case against the employee’.  This does not require ‘detailed information’ but ‘sufficient detail ... to enable the employee properly to put forward his side of the story.”				[Paragraph 40]

As noted above, it may be permissible for a Step 2 requirement to be complied with before a Step 1 requirement; thus the stages of the statutory procedure are not necessarily sequential.  However, failure to comply with the Step 2 requirement cannot be cured at the Step 3 appeal; (see Davies  v  Farnborough College of Technology, Paragraph 19 [2008] IRLR 14).  In Davies, Burton J, in a case relating to dismissal for redundancy, said it was necessary to give sufficient information to allow the employee both to understand and to challenge why it was proposed to dismiss him for redundancy.

Again, in view of the absence of any relevant decisions by the Court of Appeal in Northern Ireland, other than the case of Lewis  v  McWhinney’s Sausages Ltd, referred to above, in relation to the statutory dismissal procedures, the tribunal considered it relevant to consider and follow, as appropriate, the various decisions of the Employment Appeal Tribunal and Court of Appeal in England and Wales, as referred to above when considering the proper interpretation of the said statutory dismissal procedures and, in particular, the three step process referred to in the said procedures.

3.9	Following the introduction of the new statutory dismissal procedures, Article 130A(1) and (3), as set out above, provided a dismissal was automatically unfair if the new procedures were not followed.  

3.10	Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey  v  AE Dayton Services Ltd [1988] ICR 344 (‘Polkey’).  However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1).  Article 130A(2) of the 1996 Order therefore is only of application  where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than statutory dismissal procedures.  

3.11	In relation to the claimant’s claim of ‘ordinary’ unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, it has long been established that the burden is on the respondent to establish the reason relied upon by it.  The question of whether it did in fact justify the dismissal requires the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order.  (See further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 8 and Mental NHS Trust  v  Sarkar [UKEAT/0479/08], where it is established in relation to the issue of fairness, there is no burden of proof on any party.)

3.12	In relation to a case where the reason for the dismissal is found to relate to the conduct of the claimant, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the tribunal, as set out above, then has to determine whether the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously.  

	Applying the dicta, which originated in the well-known case of British Home Stores Ltd  v  Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-

“(i)	whether the employer had a genuine belief in the guilt of the employee;

		(ii)	whether it had reached that belief on reasonable grounds;

		(iii)	whether this was following a reasonable investigation; and

(iv)	whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”

	As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral’ burden of proof (see further DSG Retail Ltd  v  Mackey [2013] UKEAT/0054/13 and Singh  v  DHL Services [2013] UKEAT/0462/12]).

In Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was made clear ‘the range of reasonable responses test’ applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason.  Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

In Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-

	“ …

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

(2)	in applying the Section the industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they [the members of the industrial tribunal] consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

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

(5)	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair : if the dismissal falls outside the band it is unfair.”

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision.  As Viscount Dilhourne said in W Devis & Sons Ltd  v  Atkins [1977] IRLR 314:-

“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”

	In W Weddel & Company Ltd  v  Tepper [1989] IRLR 96, it was held that:-

“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’.  That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances.  If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin  v  Citybus Ltd [2008] NICA 42 and Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council  v  McCann [2013] NICA 7 and Gould  v  Regency Carpet Manufacturing Ltd [2013] NICA 26.  In London Ambulance NHS Trust  v  Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer.  In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater  v  Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-

“The employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	As Underhill LJ emphasised in Stuart  v  London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test.  He acknowledged that different tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-

“ ... two tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”

3.13	In the event of an admission of misconduct, it may be appropriate to restrict the nature and level of any investigation carried out and much may depend on when the admission is made and the terms of same (see further Royal Society for the Protection of Birds  v  Croucher [1984] IRLR 425).  As was made clear in the judgment, this only will arise in limited circumstances:-

“Here there was no question of suspicion or of questioned belief; here the dishonest conduct was admitted.  Therefore there was very little scope, therefore, for the kind of investigation to which this appeal tribunal was referring in Burchell’s case; investigation that is to, designed to confirm suspicion or clear up whether or not a particular act of misconduct has occurred ... .”

	In Boys and Girls Welfare  v  MacDonald [1996] ICR 693, it was confirmed that Crowcher laid down an approach applicable to cases were there is no conflict on the facts.  In this context, and having regard to the ‘reasonable responses’ test, it may be necessary for a tribunal to consider whether there was a conflict on the evidence before the employer and whether an employer acted within the range of a reasonable employer in limiting the scope of its investigation in the light of those admissions.  There may be no issue of the fact of the incident in question had occurred; but in a question of dishonesty/theft, for example, questions of intention/ subjective mind of an employee accused of misconduct may also arise and require to be considered (see later re: dishonesty).

3.14	As was made clear in John Lewis Plc  v  Coyne [2001] IRLR 139, a reference in disciplinary rules to dishonesty normally being regarded as serious misconduct, which would normally lead to dismissal indicates that dismissal is not an inevitable consequence of such conduct.  The duty on the employers to act fairly and reasonably requires that they should investigate the seriousness of the offence in the particular case.

	Further, the Employment Appeal Tribunal stated that there are two aspects to dishonesty, the objective and the subjective, and judging whether there has been dishonesty involves going through a two-stage process.  First, it must be decided whether according to the ordinary standards of reasonable and honest people, what was done was dishonest.  If so, then, secondly, consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest.  The Employment Appeal Tribunal emphasised much may depend on the particular facts of the case, as it stated:-

“In many, but not all cases where actions are obviously dishonest by ordinary standards, there will be no doubt about it.  In the present case, in our view, it was not necessarily obvious that using the appellant’s telephone for personal use was ‘dishonest’ ... The appellant did not investigate the question of dishonesty.  It assumed it from the making of any personal calls, putting it into the same category in effect as stealing money . ... ”

The Employment Appeal Tribunal in setting out the above appeal in relation to dishonesty relied on the dicta of Lord Lane LCJ in the criminal case of R  v  Ghosh [1982] QB 1053 – where an issue for the jury related to the defence of the defendant he did not think he had been dishonest.

In Strouthos  v  London Underground Ltd [2004] IRLR 636, the Court of Appeal emphasised that it was important to form the disciplinary charge carefully in order to ensure that a misconduct dismissal was for a matter charged, which had been fully investigated and to which the employee has had a proper opportunity to respond:-

“An employee should only be found guilty of the offence with which he has been charged.  It is a basic proposition in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge.  ...  Care must be taken with the framing of a disciplinary charge, and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited.  ...  Where care has clearly been taken to frame a charge formally and put it formally to an employee ... the normal result must be that it is only matters charged which can form the basis for a dismissal. ... .”

In the case of Celebi  v  Scolarest Compass Group UK and Ireland Ltd [2010] UKEAT/0032/10/2807, the Employment Appeal Tribunal applied Strouthos and stated in the course of the judgment:-

“ ... money can go missing for a range of reasons, some culpable some not and, on the other hand, through dishonesty.  Money can be lost through inefficiency, mistake, the crimes of others or the crime by a particular employee.  An employer approaches the loss of money in different ways according to what the results of its investigation are.  There are bound to be different responses from an employee accused of negligence, inefficiency and dishonesty. ... .”

It is also of relevance, in the context of these proceedings, to note that in Celebi, the Employment Appeal Tribunal held that since the Step 1 letter did not mention theft, it did not comply with the statutory dismissal procedures, subsequently repealed in Great Britain, but which, as stated previously, remain in force in Northern Ireland (see further Paragraph 3.7 above).

3.15	In a recent decision in the Court of Appeal in Davies  v  Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-

“It is not for ET to conduct a primary fact-finding exercise.  It is there to review the employer’s decision.  Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)

Further, in Turner  v  East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-

“For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment tribunal.  In spite of the requirement in Section 98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast.  Other claims – for example discrimination claims – based on the same or related facts, do attract a full merits hearing.  But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in Paragraphs 16 to 22 above.”

In those paragraphs of his judgment, referred to by Sir Stephen Sedley,                       Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr  v  Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows (Paragraph 78):-

		“ …

(4)	In applying that sub-section, the employment tribunal must decide on the reasonableness of the employer’s decision to dismiss for the ‘real reason’.  That involves a consideration, at least in misconduct cases, of three aspects of the employer’s conduct.  First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief.  If the answer to each of those questions is ‘yes’, the employment tribunal must then decide on the reasonableness of the response by the employer.

 (5)	In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found on the particular employee.  If it has, then the employer’s decision to dismiss will be reasonable.  But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse.  

 (6)	The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer.  The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable’ employer might have adopted.

 (7)	The particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.

 (8)	An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.”

Further, Lord Justice Elias emphasised ‘the band of reasonable responses test’ is not a subjective test and it is erroneous so to describe it – “it provides an objective assessment of the employer’s behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly”.  

Elias LJ also at Paragraphs 20 – 22 of his judgment observed:-

“(20)	When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations.  These are part of all the circumstances of the case.  So if the impact of a dismissal for misconduct will damage the employee’s opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.

(21)	In A  v  B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-

‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’

This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust  v  Roldan [2010] ICR 1457, Paragraph 13.

(22)	The test applied in A  v  B and Roldan is still whether a reasonable employer could have acted as the employer did.  However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.”

(See also Crawford  v  Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).

In a recent decision of the Employment Appeal Tribunal, in the case of Mitchell  v  St Joseph’s School, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-

“The point is that the duty of the employment tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer.”

3.16	In the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, it is provided in relation to dealing with gross misconduct as follows:-

“38	If an employer considers an employee guilty of gross misconduct and potentially liable for summary dismissal, it is still important to establish the facts before taking any action.  The short period of suspension with full pay may be helpful or necessary, although the suspension should be imposed only after careful consideration and should be kept under review.  It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any pre-judgment ... 

 39	It is a core principle of reasonable behaviour that employers should give employees the opportunity of putting their case at a disciplinary meeting before deciding whether to take action.  This principle applies as much to cases of gross misconduct as it does to ordinary cases of misconduct for unsatisfactory performance thus the three step procedure applies to gross misconduct cases ... .”

Further, in Paragraph 8 of the said Code, it is provided in relation to small businesses:-

“In deciding cases of unfair dismissal tribunals will take account of an employer’s size and administrative resources when deciding if he/she acted reasonably.  In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code.  However, all organisations, regardless of size, must follow the minimum statutory dismissal and disciplinary procedure where these are applicable.”

	Under the Code it is stated:-

“A failure to follow any part of this Code does not, in itself, make a person or organisation liable to proceedings.  However, industrial tribunals shall take this Code into account when considering relevant cases  ...  Employers and employees should be aware that failure to follow any aspect of the statutory dismissal and disciplinary procedure will result in an industrial award being adjusted to reflect this failure ... .”

	Under Paragraph 30 of the Code it is further stated:-

“It is important for employers to bear in mind that before they dismiss an employee or impose a sanction such as loss of seniority or loss of pay, they must, as a minimum, have followed the statutory dismissal and disciplinary procedures..  The standard statutory procedure summarised in the box below requires the employer in almost all cases to:

	Step 1 :

Write to the employee notifying him/her of the allegations against him/her and invite him/her to a meeting to discuss the matter;

	Step 2 :

Inform the employee of the basis of the allegations before holding the meeting to discuss this – at which the employee has the right to be accompanied – and notify the employee of the decision;

	Step 3 :

If the employee wishes to appeal, hold an appeal meeting at which the employee has the right to be accompanied and inform the employee of the final decision.”

3.17	Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness.  As the Court of Appeal held in Taylor  v  OCS Group Ltd [2006] EWCA Civ 702:-

“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair.  After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care.  Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the                      open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”

	In a recent decision, the Employment Appeal Tribunal, in the case of Holt  v  Res On Cite Ltd [2014] UKEAT/0410 emphasised that the tribunal’s role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd  v  Parhar [2012] UKEAT/0643]). 

	In McMaster  v  Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing.  As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be advise to  his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”

See further West Midlands Co-Operative Society Ltd  v  Tipton [1986] AC 536)  In London Probation Board  v  Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

... the whole point of internal appeals is to allow for bad or unfair decisions to be put right.”

3.18	In Rowe  v  Radio Rentals Ltd [1982] IRLR 177, it was emphasised that it is very important that internal appeal procedures run by commercial companies (which usually involve a consideration of the decision to dismiss by one person in line management by his superior) should not be cramped by legal requirements imposing impossible burdens on companies in the conduct of their personnel affairs.  In general, it was accepted that it was inevitable that those involved in the original decisions to dismiss must be in daily contact with their superiors who will be responsible for deciding the appeal.  Therefore, the appearance of total disconnection between the two cannot be achieved and, moreover, at the appeal hearing the initial dismisser is very often required to give information as to the facts to the person hearing the appeal.  It was therefore held that rules about total separation of functions and lack of contact between those hearing the appeal and those involved in the original decision, therefore, cannot be applied in the majority of cases and the correct approach was indicated by Lord Denning in Ward  v  Bradford Corporation [1971] where he said:-

“We must not force the disciplinary bodies to become entrammelled in the nets of legal procedure.  So long as they act fairly and justly, their decision should be supported.”

Indeed this approach is to be found in the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, referred to previously.  

In Paragraph 50 of the Code, it is provided:-

“A more senior manager not previously involved with the case should hear the appeal.  Where a person at the most senior management level has already been involved with the case and there is a manager of the same status who has not, the appeal should be heard by the latter.  In the event that neither of these is possible and the same manager who took the disciplinary action, unavoidably, has to hear the appeal that manager should act as impartially as possible ... .”

3.19	Under Article 130(2)(b) of ERO 1996, a dismissal is capable of being fair if it is for a reason which ‘relates to the conduct of the employee’.  The reference to conduct is in general terms and it does not necessarily have to amount to gross misconduct. Gross misconduct is not defined in the legislation.  In Chhabra  v  West London Mental Health Trust [2014] ICR 194, the Supreme Court stated it should be conduct which would involve a repudiatory breach of contract – namely conduct undermining trust and confidence which is inherent in the particular contract of employment such that the employer should no longer be required to retain the employee in his employment (see further Neary  v  Dean of Westminster [1999] IRLR 288 approved by the Court of Appeal in Dunn  v  AAH Ltd [2010] IRLR 709.  In Sandwell & West Birmingham Hospitals NHS Trust  v  Westwood [2009] UKEAT/0032, it was held that gross misconduct raises a mixed question of law and fact and, as a matter of law it connotes either deliberate wrongdoing or gross negligence.  It is for the tribunal, without falling into the ‘substitution mindset’ (see London Ambulance Service  v  Small [2009], referred to previously, to asses whether the conduct in question was such as to be capable of amounting to gross misconduct).  Even, if it is found the conduct did amount to gross misconduct, it is necessary to consider whether dismissal is a fair sanction.

In determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer.  As stated by Philips J in Trust Houses Forte Leisure Ltd  v  Aquilar [1976] IRLR 251:-

“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss.  It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible.”

In the case of Brito-Bubapulle  v  Ealing Hospital NHS Trust [2013] UKEAT/0358/12, Langstaff P has emphasised that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses and a tribunal must assess whether it was reasonable in all the circumstances to dismiss an employee for such gross misconduct.  This requires a tribunal to consider any relevant mitigating factors which might mean dismissal was not reasonable.  Such factors might include, for example, length of service, the fact that such service was previously unblemished and the consequences of dismissal for future employment (see further Roldan, referred to above, Trusthouse Forte (Catering) Ltd  v  Adonis [1984] IRLR 382).

In Central West London Buses Ltd  v  Spencer [UKEAT/0481/12] it was held that it cannot be assumed that an instant of what would usually be seen as serious misconduct would automatically result in unfair dismissal.

In Strouthos, length of service was held to be a factor which an Employment Tribunal may properly take into account in deciding whether the decision of an employer to dismiss in reaction to the employee’s conduct was an appropriate one.  

In Paragraph 20 of the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures, referred to previously, it is stated:-

“Before making any decision the employer should take account of the employee’s disciplinary and general record, length of service, actions taken in any previous similar case within the organisation, the explanations given by the employee and – most important of all – whether the severity of any intended disciplinary action is proportionate and reasonable in all the circumstances.  In considering the circumstances employers should take account of, in particular, the extent to which standards have been breached ... .”

3.20	In the well-known House of Lords decision in Polkey  v  AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal.  Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.  

	However, although the tribunal might find that dismissal was unfair, a tribunal, following Polkey, was able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed.  A Polkey reduction therefore required an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.  

3.21	Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

	Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly.  The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures.  The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden  v  Manor Surgery [2007] IRLR 17).

3.22	However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with.  Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt  v  CAFCSS [UKEAT/0362/07]).  As was made clear in the case of Goodin  v  Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal.  If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair.  Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

3.23	In Software 2000 Ltd  v  Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed.  Using its common sense experience and sense of justice in the normal case, the tribunal would require to assess for how long the employee would have been employed but for the dismissal.  However, it is for the employer who seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself.  

	As Elias J stated in his judgment:-

“The mere fact an element of speculation was involved was not a reason for the tribunal refusing to have regard to the evidence.”

In considering issues relating to Polkey deductions in the case of Hill Ltd  v  Governing Body of Great Tey Primary School, Langstaff P said the correct test is ‘predictive’ – ‘could the employer fairly have dismissed and what were the chances that the employer would have done so’.  In a recent decision, in the case of                  Dev  v  Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach:-

“6.	A tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened.  To ask what would have happened asks for a decision, effectively, on the balance of probability, with a straight yes or no answer.  The second looks at the matter as one of assessment of chances.  It is well established that the latter is the correct approach ... (see further Ministry of Justice  v  Parry [2013] ICR 311 ...).”

	In Brinks Ireland Ltd  v  Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd  v  Andrews and stated:-

“ ... If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely.  Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... .”

3.24	In the case of Morrison  v  Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

“(i)	the tribunal must take a broad common sense view of the situation;

(ii)	that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

(iii)	what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

(iv)	the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”

In Allders International Ltd  v  Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

In a recent decision of the Employment Appeal Tribunal in the case of Steen  v  ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% deduction for contributory fault.  He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it.  Langstaff P noted that Polkey deductions and deductions for contributory fault are approached on different basis and do not directly overlap:-

“That is because the focus in a Polkey decision is predictive, it is not historical, as is the focus when establishing past contributory fault as a matter of fact.  Second, Polkey focuses upon what the employer would do if acting fairly.  Contributory fault is not concerned with the action of the employer but with the past actions of the employee.  A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”

3.25	Article 156(2) of the 1996 Order, provides, in relation to the issues of the amount of a basic award and contribution on the part of the claimant:-

		“Where the tribunal considers any conduct of the complainant before the dismissal .... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”  

Article 157(6) of the 1996 Order provides in relation to the issues of the amount of a compensatory award and contribution on the part of the claimant:-

	“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” 
In the Northern Ireland Court of Appeal, in the case of GM McFall & Company Ltd  v  Curran (1981) IRLR455, which would be normally binding on this tribunal, it was held that the general rule is that both the basic and compensatory awards should be reduced by the same amounts.  It should be noted, however, that the relevant legislation in Northern Ireland at the time of that decision was differently worded to that now seen in the 1996 Order.  In particular, the provisions relating to both a basic award and a compensatory award were in similar terms to that now seen in Article 157(6) of the 1996 Order and both provisions, at that time, therefore had reference to causation/contribution. 

Now, Article 156(2) and Article 157(6) of the 1996 Order, as set out above, are in similar terms to those set out in Sections 122(2) and 123(6) of the Employment Rights Act 1996, which applies in Great Britain.  As has been made clear in a recent decision of Langstaff P in the case of Steen  v  ASP Packaging Ltd (2013) UKEAT/0023/13:-

“The two sections are subtly different.  The latter calls for a finding of causation.  Did the action which was mentioned in Section 123(6) cause or contribute to the dismissal to any extent?  That question does not have to be addressed in dealing with any reduction in respect of the basic award.  The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent.  Both sections involve the consideration of what is just and equitable to do.”

He also points out that, in applying the provisions of Section 123(6) if the conduct which it has identified and which it considers blameworthy did not cause or contribute to the dismissal to any extent, then there can be no reduction, pursuant to Section 123(6), no matter how blameworthy in other respects the tribunal might consider the conduct to have been.  If it did cause or contribute to the dismissal, then issues arise to be determined in relation to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

Langstaff P emphasises that:-

“A separate questions arises in respect of Section 122(2) (the basic award) where the tribunal has to ask whether it is just and equitable to reduce the amount of the award to any extent.  It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award but it does not have to do so.”        

	So, in light of the foregoing, it would appear that, despite the change in the wording of the legislative provisions in Northern Ireland since the decision of the Court of Appeal in Northern Ireland, in GM McFall & Company Ltd, was decided, in most cases the same result would still be achieved; albeit it must be remembered that, in relation to the compensatory award, issues of causation/contribution have to be considered before any issues of reduction arise.  This, for the reasons set out above, is unlike the position in relation to the basic award.  However, as seen above, in most cases, the same reduction will continue to be applied to the basic and compensatory awards. 

3.26	The amount of any reduction of the basic and/or compensatory award (see before), by a percentage on just and equitable grounds, can be as much as 100%; but such a sizeable reduction, although legally possible, is rare/unusual/exceptional (see Lemonious  v  The Church Commissions (2013) UKEAT/0253/12); and, if such a reduction is made by a tribunal, it must be justified by facts and reasons set out in the decision.  In any event, the factors which help to establish a particular percentage should be, even if briefly, identified (see further Steen  v  ASP Packaging (2013) UKEAT/0023/13).

3.27	In relation to the issue of compensation, where a claimant has obtained income from a new job, following an unfair dismissal, the Employment Appeal Tribunal, in the case of Whelan  v  Richardson [1988] IRLR 144, summarised the approach to be taken by tribunals; albeit emphasising that tribunals had a discretion to do what was appropriate in individual cases:-

“(1)	The assessment of loss must be judged on the basis of the facts as they appear at the date of assessment hearing (‘the assessment date’).

 (2)	Where the (claimant) has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate in the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the Employment Appeal Tribunal will consider for how long the loss is likely to continue so as to assess future loss.  

 (3)	The same principle applies where the (claimant) has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal.  He will be compensated on the basis of full loss until the date in which he obtained the new employment and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings.  

 (4)	Where the (claimant) takes alternative employment on the basis it will be for a limited duration, he will not be precluded from claiming loss to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

 (5)	As soon as the (claimant) obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases.  It cannot be revived if he then loses that employment either through his own action or that of his now employer.  Neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment.  The chain of causation has been broken.”

This guidance was described as helpful by the Court of Appeal in Dench  v  Flynn & Partners [1998] IRLR 653, although the Court considered that the obtaining of permanent employment at the same or a greater salary would not in all cases break the chain of causation.  The Dench decision was applied in Cowen  v  Rentokil Initial Facilities Service (UK) Ltd [2008] AER (D) 70.  Further, in a recent decision of the Employment Appeal Tribunal, in the case of Commercial Motors (Wales) Ltd  v  Hawley [2012] UKEAT/0636, the Employment Appeal Tribunal cited with approval the case of Dench and, in particular, the judgment of Beldam LJ, when he stated at Paragraph 19 of his judgment:-

“19	... no doubt in many cases a loss consequence upon unfair dismissal will cease when an applicant gets employment of a permanent nature at a equivalent or higher level of salary or wage than the employee enjoyed when dismissed.  But to regard such an event is always and in all case putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable.

 20	Although causation is primarily a question of fact the principle to be applied in deciding whether the connection between the cause, such as unfair dismissal and its consequences, is sufficient to find a legal claim to a loss of damage, is a question of law.  The question for the tribunal was whether the unfair dismissal, could be regarded as a continuing course of loss when she was consequently dismissed by her new employer with no right of compensation after a month or two in her new employment.  To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes, is to treat the effective cause that which is simply closest in time.”

In Salvesen Logistics Ltd  v  Tate [UKEAT/689/98], the Employment Appeal Tribunal made clear that the chain of causation will not be broken where it is clear from the outset that the employment would be on a temporary basis.  

3.28	In relation to the issue of mitigation of loss, there is no dispute that the principle that a claimant is under a duty to take reasonable steps to mitigate his loss is              well-established under common law and that the principles of mitigation of loss apply equally to awards of compensation by a tribunal in relation to awards of compensation for unfair dismissal (see Fyfe  v  Scientific Furnishings Ltd [1989] IRLR 331) and that therefore the employee must take reasonable steps to obtain alternative employment.  In the case of Wilding  v  British Telecommunications PLc [2002] IRLR 524, the Court of Appeal ruled that the following general principles apply in determining whether a dismissed employee, who is refused an offer of employment, has breached the duty to mitigate:-

“(a)	The duty of the employee is to act as a reasonable person unaffected by the prospect of compensation from her employer.

 (b)	The onus is on the former employer as wrongdoer to show that the employee has failed to mitigate by unreasonably refusing the job offer.

 (c)	The test of reasonableness is an objective one based on the totality of the evidence.

 (d)	In applying that test, the circumstances in which the offer is made and refused, the attitude of the former employer, the way in which the employer had been treated, in all the surrounding circumstances, including the employee’s state of mind, should be taken into account.

 (e)	The tribunal must not be too stringent in expectations of the injured party (that is, the employee).

The guidance in set out in the Wilding case has been applied in a number of recent decisions by the Employment Appeal Tribunal; but each relate to their own particular facts (see further Harris  v  Tennis Together Ltd [2009] UKEAT/0358/08, Hibiscus Housing Association Ltd  v  Mackintosh [2009] UKEAT/0534/08, and Beijing Ton Ren Tang (UK) Ltd  v  Wang [2009] UKEAT/0024/09.”

The state of the labour market can be relevant in deciding whether an employee has made reasonable efforts to find a new job (see Korn Employment Tribunals Remedies, Paragraphs 13 – 28).  It was held HG Bracey  v  Kes [1973] IRLR 210 that the duty of mitigation does not require the dismissed employee to take the first job that comes along, irrespective of pay and job prospects.  

	In the recent decision of Look Ahead Housing and Care Ltd  v  Chetty (2014) UKEAT/0037 Langstaff emphasised, in relation to the burden of proof by the employer:-

“But without there being evidence (whether by direct testimony or by inadequate answers given by a claimant in cross-examination) adduced by the employer on which a tribunal can be satisfied, on the balance of probabilities, that the claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed”.  (Tribunal’s emphasis)

3.29	In Burlo  v  Langley [2007] IRLR 145, the principle set out in Norton Tool Co Ltd  v  Tewson stated that, in calculating an unfairly dismissed employee’s compensation an employee who is dismissed without notice should receive a full notice payment without having to give credit for sums earned from other employers during the notice period.

	In TBA Industrial Products Ltd  v  Locke [1984] IRLR 48 it was established that such sums may also be included as part of the employee’s lost earning in the compensatory award.

4.1	In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.  

4.2	There was no dispute that the claimant was dismissed by the respondent on 2 July 2014.  Although the claimant had not expressly raised in his claim form the issue of whether the respondent had complied with the statutory dismissal and disciplinary procedures, contained in the 2003 Order and 2004 Regulations, and therefore whether or not the dismissal was automatically unfair, pursuant to Article 130A of the 1996 Order, the tribunal was required to consider and determine the issue, in light of the decision in Venniri  v  Autodex.  As both parties were                        litigants-in-person, the tribunal took time, during the course of the hearing, to explain to each of them the said issues relating to automatic unfair dismissal and the necessity for the tribunal to determine them, so that they could give evidence, if they wished to do so in relation thereto.  It also made clear to the parties, even if the tribunal concluded the claimant had been automatically unfairly dismissed, the tribunal would also determine whether or not the claimant had been the subject of ‘ordinary’ unfair dismissal (see Metrobus  v  Cooke).

4.3	The first requirement for the tribunal to consider was whether the respondent had properly complied with the requirements under Step 1 of the statutory dismissal procedures, as set out in Paragraph 3(2) of this decision.  

	In the letter of 18 June 2014, the claimant was invited to the disciplinary meeting and was told, inter alia, that he faced a gross misconduct charge.  No details of the said charges were set out in the letter but the notes of the investigatory meeting of 18 June 2014 were enclosed, but not the pre-prepared statement, which had been read out to the claimant at the meeting.  If this is where the matter had remained, the tribunal would have found this, in itself, not to be sufficient compliance with the Step 1 requirements under the statutory dismissal procedure and, in particular, because it did not identify the nature of the gross misconduct, which was to be the subject of the disciplinary hearing and for which he could be dismissed.  In this context, the tribunal took into account that the notes of the investigatory meeting, which had been enclosed with the letter of 18 June 2014, were limited, but did not specifically address all of the matters which were later to be subject of the disciplinary hearing and, in particular, the two matters, which were the subject-matter of the charges for which he was ultimately to be dismissed by the respondent (see later).  However, following the letter of 18 June 2014, in a further undated letter, re-arranging the date of the disciplinary hearing, the charges were set out by the respondent, which were to be the subject-matter of the disciplinary hearing on 2 July 2014.  

	These were in bullet form/headline terms.  Subject to a further matter set out below, such bullet form/headline terms were sufficient, in the judgment of the tribunal, to comply with the requirements of the Step 1 under the statutory procedure (see Alexander  v  Bridgen Enterprises [2006] ICR 1277 and the cases referred to in Paragraph 3.7 of this decision).  

	In relation to the charges, which were subsequently found by the respondent to be the reason for his dismissal, the bullet point/headline terms stated:-

•	Members of public served drink without payment

•	Company’s money’s removed from off sales till

It was apparent at the disciplinary hearing, and indeed in the decision taken by the respondent to dismiss the claimant, that the respondent considered this conduct amounted to theft by the claimant.  At the investigation meeting on 18 June 2014, in the pre-prepared statement, there had been a reference to theft occurring at the premises, which was reflected in the stock reports.  This reference was in general terms and, in the judgment of the tribunal, could not be relied upon by the tribunal, to avoid the need to expressly refer to theft in the Step 1 letter, setting out the specific charges the subject of the disciplinary hearing.  It is also to be noted these specific charges were not discussed at the investigation meeting and only emerged in the undated letter sent shortly before the disciplinary hearing.

As was emphasised by Strouthos  v  London Underground [2004] IRLR 636, it is very important to form the disciplinary charge carefully (see further Paragraph 3.14 of this decision).  In the judgment of the tribunal, the failure, in the bullet point/ headline terms setting out these two charges, for which the claimant was dismissed, in the undated letter sent to the claimant prior to the disciplinary hearing, to make any reference to the fact that this conduct was considered by the respondent to be theft on the part of the claimant and was not, for example, merely a breach of procedure, was a failure to properly comply with the requirements of Step 1 of the statutory dismissal procedure.  In Alexander it is stated, for example, that, if dishonesty is the conduct relied on, it should be stated in the Step 1 letter.  A similar failure to that which occurred in the present proceedings, is to be found in the case of Celebi v Scolarest Compass Group UK & Ireland Ltd [2010] UKEAT/0032/10/2807 (see Paragraph 3.14 of this decision) and was held to amount to a failure to comply with the then statutory dismissal procedures, which then applied in Great Britain and which continue to apply in Northern Ireland.  

4.4	In view of the said failure to comply with the said statutory dismissal procedure, the tribunal therefore found the dismissal was automatically unfair, pursuant to Article 130A(1) of the 1996 Order, when he was dismissed, without notice, on 2 July 2014.  The tribunal was satisfied that Steps 2 and 3 of the statutory dismissal procedure were complied with, as there was a disciplinary meeting and an appeal sufficient to satisfy the said minimum requirements of the disciplinary procedure.  It will be necessary to refer again elsewhere in this decision to these issues, in the context of ‘ordinary’ unfair dismissal, but also in the context of remedy and the appropriate uplift, if any, to be applied to any award of compensation to be paid by the respondent on foot of the finding of automatic unfair dismissal.  

4.5	The tribunal, in the alternative, was also satisfied the claimant was unfairly dismissed (‘ordinary’ unfair dismissal), pursuant to Article 130 of the 1996 Order.

	In considering the fairness of any such dismissal, the tribunal also relied on the failure outlined in the previous sub-paragraphs in relation to the failure to comply by the respondent with Step 1 of the statutory dismissal procedure, which had similar application in relation to the finding of ‘ordinary’ unfair dismissal.  The statutory dismissal procedure, is the minimum procedure which an employer must follow and therefore any failure to comply with such a minimum procedure is a serious failure on the part of an employer, such as the respondent.  

4.6	It was apparent that at all material times, Mrs Burns believed the actions of the claimant, when he served ‘the members of the public with drink without payment’ and when he removed the respondent’s money from the off sales till amounted to theft.  In fairness to Mrs Burns, although the Step 1 letter had not referred to the charge of theft, during the course of the disciplinary hearing she made it clear to the claimant that she considered his actions as theft, in giving Tracey Rafferty a beer, without payment while she waited, at the claimant’s request, to drive the staff home, with the consequential saving of the respondent of the £5.00 taxi fare.  The claimant had given, as appears from the notes of the disciplinary hearing, this explanation and, indeed, these facts were not challenged by Mrs Burns.  The claimant had explained, in evidence, and again this was not challenged, normally the taxi fare would be taken out of the till and a note saying so would be left in the till.  Although Mrs Burns did not challenge what the claimant had said, she merely stated she considered what had taken place was theft.  Whilst there was no necessity, in the circumstances, to investigate further these basic facts, which in essence were admitted by the claimant and were not the subject of any challenge by Mrs Burns, she made no attempt to investigate, by questioning or otherwise, the further issue of intention/subjective mind of the claimant and, in particular, whether, in such circumstances, what he had done amounted to theft; and, in particular, in circumstances where he was suggesting to Mrs Burns he was doing his employer ‘a good turn and saving it money’ and no question of dishonesty therefore arose.  To jump from the not disputed version of events, without anything more, to a finding of theft meant that the respondent, in the tribunal’s judgment, could not have had the necessary belief that the claimant’s actions were actions of theft; and, therefore, its actions in dismissing the claimant for theft did not fall within the range of reasonable responses (see further Boys and Girls Welfare).  

Similarly, in relation to the second charge – ‘Company’s money’s removed from off sales till’ – Mrs Burns again reached an immediate conclusion that what the claimant had done amounted to theft, without further examination of those facts, which, as seen before, were largely admitted by the claimant.  Significantly, Mrs Burns accepted that the claimant had, before leaving the premises at the end of his shift, replaced the full £20.00 in change he had taken from the till on the two occasions, with a £20.00 note.  No further investigation was carried out by Mrs Burns before reaching her conclusion and, in particular, how this amounted to theft in circumstances where he had ‘returned the money in full before he left’.  As Mrs Burns said, in evidence, as far as she was concerned the mere fact he had taken the money out of the till whether on the first occasion, let alone the second, and/or whether or not he put it in the till an ‘IOU’ between the two occasions and/or returned the full money he had removed, that was enough – it was theft.  There was no further investigation, in the circumstances, into his intention or subjective mind at the time.  Mrs Burns placed no significance, in particular, on the fact he had returned the money in full, which she did not dispute, in determining whether his actions amounted to theft.  She carried out no further investigation into whether this practice of taking money out of the till for use in the slot machine and/or placing an IOU in the till was common practice, which, in the judgment of the tribunal, Mrs Burns would have required to do as a reasonable employer in order to determine whether his actions in removing the money from the till in the first place amounted to theft.  Such an investigation would have been relevant to determining whether these actions amounted to theft or, for example, a breach of procedures.  Because of the immediate conclusion of theft by Mrs Burns, these matters were not investigated further by her.

Again, in such circumstances, without such further investigation, the tribunal was not satisfied Mrs Burns could have had the necessary belief the claimant’s actions amounted to theft.  To dismiss him for theft could not therefore fall within the range of reasonable responses.

4.7	Further, as seen in A  v  B and Roldan (see Paragraph 3.15), it was necessary for Mrs Burns, as a reasonable employer, given she was determining in fact a serious charge of criminal misbehaviour, to have stood back and considered all the facts not just the admitted facts of the free drink given to Ms Rafferty and the initial taking of £20.00 from the till but also, in particular, why he had asked Ms Rafferty to stay and had given her the free drink while she waited, the fact that he had returned the £20.00 in full but also whether the practice in the Bar at that time, as claimed by the claimant, allowed staff to take money out of the till to play the slot machines, provided, in essence, it was returned or an IOU was placed in the till.  She should have done this before she decided it was theft, which is a serious charge of criminal misbehaviour.  She did not consider whether, on the facts, what the claimant had done amounted to theft, according to the ordinary standards of reasonable honest people and/or whether the claimant considered what he had done was dishonest.  He clearly believed he had not acted dishonestly, and indicated so.  To have failed to further consider these matters and their relevance to such charges of theft and to assume it was theft, without more, did not fall within the range of reasonable responses of a reasonable employer.

4.8	The claimant’s conduct was found by the respondent to be gross misconduct.  If the respondent had been correct (see before) to find that the actions of the claimant amounted to theft, the tribunal would have accepted such actions could amount to gross misconduct.  However, having decided that the actions of the claimant amounted to theft, Mrs Burns then decided there could be no other sanction but dismissal.  She closed her mind to an other alternative and failed to consider any relevant mitigating factors.  There was no consideration of the claimant’s length of service at the Glenpark since 1991 and, on the evidence before the tribunal, his unblemished disciplinary record, prior to these events.  The tribunal was forced to the conclusion that Mrs Burns decided that, if there was a finding of serious misconduct, then there had to be a dismissal.  To so conclude, without further consideration of the matters seen above, in the tribunal’s judgment, was not within the range of reasonable responses by an employer.  Indeed, to fail to consider such matters, which were all relevant on the facts found by the tribunal was contrary to Paragraph 20 of the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedure (see further Brito-Bubapulle).

	The respondent provided the claimant with an opportunity to appeal the decision of Mrs Burns to dismiss the claimant.  Given the family links between Mr Keenan and Mr and Mrs Burns, the tribunal could understand why it had been decided Mr Keenan would not play any part in the disciplinary process until, if it became necessary, there required to be an appeal by the claimant of any decision made by Mrs Burns at the disciplinary hearing.  

	The tribunal noted that, although Mr Keenan was conducting the appeal, both Mrs Burns and Mr Burns attended the appeal.  It was never explained what was the reason for their presence at the appeal or what role it was intended they would play in the appeal.  Indeed, by their presence, in such circumstances, the tribunal had concerns about the independence of this appeal procedure, which Mr Keenan was very keen to emphasise.  Their presence, in such circumstances, could have put additional pressure on the claimant but, in the event, it would appear                       Mr and Mrs Burns played no direct part in the appeal, other than their mere presence and the tribunal was satisfied, on the evidence before it, that the claimant himself was satisfied that he was able to put all points that he considered necessary to Mr Keenan in relation to this appeal.  Indeed, he made no complaint about their presence at the appeal hearing.  

	The tribunal found Mr Keenan an unsatisfactory witness, given the contrast between Mr Keenan’s evidence to the tribunal that, in essence, he had not looked at any of the documentation, CCTV, audio recordings before the hearing of the appeal and what later emerged after the audio recording of the appeal was listened to by the tribunal.  This showed, contrary to his evidence, he had in fact looked at it before the appeal.  It meant his repeated protestations to the tribunal of wanting to provide the claimant with an impartial appeal of the decision to dismiss him, given his reputation as an accountant and he was related to the person who had made the decision, lacked credibility.  

	Mr Keenan found, without any further consideration of the facts, that having given Ms Rafferty a drink without payment was theft, despite the claimant’s explanation, which was never seriously challenged.  Similarly, he also did not seriously dispute, after looking at the CCTV, the claimant had not replaced the £20.00 at the end of his shift.  He concluded to take the money out of the till in the first place was theft – without attempting to consider the matter further.  He did not carry out any investigation into the practices at the Glenpark; but assumed theft on the part of the claimant.  These failures were similar to those of his sister, Mrs Burns, when deciding to dismiss the claimant.  As the tribunal found those failures by his sister meant she did not have the necessary belief and her actions in dismissing the claimant did not fall within the range of reasonable responses, the tribunal reached similar conclusions in relation to his decision on appeal.  Similarly, Mr Keenan did not consider any alternative to the sanction of dismissal or any mitigating factors.  In the circumstances, the tribunal therefore concluded that the claimant had not been provided with a proper and genuine appeal and, in essence, the appeal was a rubber-stamping exercise by Mr Keenan of the decision of Mrs Burns.  As set out in the decisions referred to in Paragraph 3.17 of this decision, the importance of a genuine appeal cannot be underestimated and, in particular, rectifying defects and failures in the earlier disciplinary process.  This must be of particular importance where the person hearing the appeal is closely related to the person making the decision, the subject of appeal; but also the serious findings, namely of theft, which require to be considered on appeal.  The appeal is every much a part of the whole disciplinary process and, in this particular case, it added further grounds for the finding by the tribunal that the said dismissal by the respondent was unfair in the circumstances.  The earlier failures were not rectified or even considered by Mr Keenan.

4.9	As set out above, the tribunal concluded the dismissal of the claimant was not only ‘automatically’ unfair but was also ‘ordinarily’ unfair.  

	As set out in Paragraphs 3.20 – 3.23 of this decision, in the event of a ‘ordinary’ unfair dismissal, Article 130A(2) of the 1996 Order applies.  If the employer has complied with the statutory dismissal procedure (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2) of the 1996 Order, the dismissal will be fair.  By way of contrast, automatic unfairness cannot be cured by invoking Article 130A(2) of the 1996 Order.  Such a dismissal remains unfair; but there can be a ‘Polkey’ reduction of up 100%, in an appropriate case, to represent the chance the employee would still have been dismissed.  

4.10	In considering these issues, whether for the purposes of Article 130A(2) of the 1996 Order (in the case of ‘ordinary’ unfair dismissal) or Polkey (in the case of ‘automatic’ unfair dismissal), it is inevitable an element of speculation is involved, as it is necessary for the tribunal to ask what might have happened.  In light of the tribunal’s conclusions, the tribunal was not satisfied, if the respondent had acted in the way a reasonable employer should have, as set out in the previous sub-paragraphs of this decision, the claimant would have been dismissed at all, let alone there was a greater than 50% chance of such a dismissal.  Therefore, the tribunal concluded, in the case of the automatic unfair dismissal, that no Polkey reduction was applicable and, in the case of ordinary unfair dismissal, that the dismissal remained unfair.  

4.11	In relation to the issue of contributory fault, the claimant, by serving Ms Rafferty a drink without payment and taking money from the off sales till to obtain change to enable him to play the slot machine, had clearly placed himself under suspicion, especially given the earlier general warning to staff and introduction of CCTV because of the loss of stock.  In this context, the tribunal could accept such actions by the claimant had to be the subject of some investigation and which led to the disciplinary hearing and ultimate dismissal.  In the circumstances, the tribunal was satisfied that his actions, which put him under such suspicion, had contributed to his dismissal, albeit in a very limited way and decided both the basic award and compensatory award should be reduced by 10% (see further Paragraph 3.25 of this decision).

4.12	Given the tribunal’s finding of automatic unfair dismissal, it was necessary for the tribunal to also consider the appropriate uplift on the compensatory award to be awarded to the claimant.  The failure to comply properly with Step 1 of the statutory procedure was a serious breach, since it made no reference to theft, a serious allegation of criminal misbehaviour.  As set out previously, the necessity to frame charges correctly cannot be underestimated, so an employee can properly prepare for the disciplinary hearing, despite the terms of the Step 1 letter.  However the tribunal was satisfied, on the evidence, that the claimant at the disciplinary hearing was very quickly made aware it was the view of the employer that his actions amounted to theft.  He had the opportunity to deny that what happened, in the light of this explanation, amounted to theft.  The tribunal also recognised that such a finding of theft by the respondent could have serious consequences for an employee such as the claimant, which could only be successfully challenged by him in a tribunal in a public hearing.  It was also, however, of some significance that the claimant has in fact been able to obtain alternative permanent employment, albeit at a reduced rate, in another public house.  The tribunal decided, in light of the foregoing, the uplift should be limited to 10%, the minimum amount of uplift.  It was not satisfied, in the circumstances, there was any evidence of exceptional circumstances, which made the uplift of 10% unjust or inequitable.  

4.13	The tribunal was satisfied the claimant had taken all reasonable steps to obtain other employment, following his dismissal, and indeed this was never seriously challenged by the respondent.  In the circumstances, the tribunal was satisfied the claimant had not failed to mitigate his loss.  However, the tribunal was hopeful that within a period of 3 months/12 weeks from the date of the hearing, and given that the claimant had already obtained permanent employment in another public house, the claimant would soon be in a position to obtain an increase in his earnings to at or about or even greater than the level of earnings he had previously enjoyed with the respondent and that therefore the period of ongoing future loss should be confined to that period.

5.1	In light of the foregoing, the tribunal assessed the compensation to be paid by the respondent to the claimant as follows:-

		A.	Basic Award

			25 x £347.76							£ 8,694.00
			Less 10% for contributory fault				£   869.40
											£7,824.60

		B.	Compensatory Award

			(i)	Loss of statutory rights 				£   400.00

			(ii)	Notice pay – 12 weeks –
				3 July 2014 to 25 September 2014
				12 x £290.74						£3,488.88

			(iii)	Loss of earnings from
				25 September 2014 to 27 November 2014
				@ £290.74 per week
(9 x £290.74)
				8 x £43.74						£2,616.66

			(iv)	Loss of earning from
				27 November 2014 to 27 January 2015
@ £43.74 per week (to take account of his 
reduced earnings at McKenna’s Bar)
				(£290.74 less £247.00 = £43.74)
				8 x £43.74						£    349.92
			
(v)	Loss of earning from

				27 January 2015 for a period of
				12 weeks 
12 weeks @ £43.74					£   524.88
				Total							£ 7,380.34

				Add 10% uplift for breach of
				statutory procedures 				£   738.03
											£ 8,118.37
				Less 10% for contributory fault			£   811.84
											£7,306.53

				Total Monetary Award (A + B)			£15,131.13

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

5.3	The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, apply to this decision.  Your attention is drawn to the attached Recoupment Notice, which forms part of this decision.

Employment Judge

Date and place of hearing:	27 – 28 January 2015, Belfast

Date decision recorded in register and issued to parties: