THE INDUSTRIAL TRIBUNALS

CASE REF:	5521/18

CLAIMANT:			Margaret Mary Couchman

RESPONDENT:		Windsor Women’s Centre

DECISION 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that compensation should be reduced on grounds of contributory conduct.  The net compensation awarded to the claimant is £35,748.00.

Constitution of Tribunal:

Employment Judge:		Employment Judge Murray

Members:				Ms F Cummins
					Mrs G Ferguson

Appearances:

The claimant was represented by Mr P Boomer.

The respondent was represented by Ms E McIlveen, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

THE CLAIM

1.	This claim is for unfair dismissal.  The respondent’s case was that the claimant was fairly dismissed for gross misconduct.

THE ISSUES

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

(i)	Was the claimant fairly dismissed for gross misconduct?

(ii)	Did those who took the decision to dismiss believe that the claimant was guilty of the misconduct alleged, was that belief based on reasonable grounds following a reasonable investigation and was the penalty of dismissal within the band of reasonable responses for a reasonable employer in the circumstances?

(iii)	In the event that any procedural defects rendered the decision to dismiss unfair, should a Polkey deduction be applied on the basis that if a proper procedure had been followed the claimant would have been dismissed in any event?

(iv)	Was there a breach of the SDP and if so, should the compensatory award be adjusted accordingly?

(v)	Should compensation be reduced because of contributory conduct by the claimant and if so, by what percentage?

THE LAW

3.	The right not to be unfairly dismissed is enshrined in ERO.  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4) which states: 
		
		“(4)  	Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

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

			(b)	shall be determined in accordance with equity and the substantial merits of the case”.
 	 
4.	The task for the tribunal in a misconduct dismissal case is set out as follows in British Home Stores Ltd v Burchell 1980 ICR 303: 

		“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

5.	The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the tribunal in a misconduct dismissal case.  The test is whether dismissal was within the band of reasonable responses for a reasonable employer.  The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.  This assessment applies to both procedure and penalty.

6.    	The case of Connolly v Western Health and Social Care Trust [2017] NICA states as regards dismissal for gross misconduct:  

	“[22]	The decision is whether or not a reasonable employer in the circumstances could dismiss bearing in mind ‘equity and the substantial merits of the case’.  I do not see how one can properly consider the equity and fairness of the decision without considering whether a lesser sanction would have been the one that right thinking employers would have applied to a particular act of misconduct.  How does one test the reasonableness or otherwise of the employer’s decision to dismiss without comparing that decision with the alternative decisions?  In the context of dismissal the alternative is non dismissal i.e. some lesser sanction such as a final written warning.

	[23]  	The authority for the Tribunal’s statement given in Harvey, Industrial Relations at paragraph [975] is the decision of the Court of Appeal in England in British Leyland UK Limited v Swift [1981] IRLR 91.  Lord Denning MR said the following at p. 93:

		“The first question that arises is whether the Industrial Tribunal applied the wrong test.  We have had considerable argument about it.  They said:

	‘…  A reasonable employer would in our opinion, have considered that a lesser penalty was appropriate’.

	I do not think that that is the right test.  The correct test is: Was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.  One would quite reasonably dismiss the man.  The other would quite reasonably keep him on.  Both views may be quite reasonable.  If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.”

	Ackner LJ and Griffiths LJ, as they then were, gave concurring ex tempore judgments.  None of those say that a lesser penalty was not a consideration that was relevant for the Tribunal to take into account.  They were stating that the overall test was.  I think it important to bear this in mind.  Harvey also cites in support Gair v Bevan Harris Limited [1983] IRLR 368.  The judgment of the Lord Justice Clerk does indeed cite and follow the decision in British Leyland but it does not exclude consideration of a lesser sanction as a relevant consideration”.

7.  	The Connolly decision confirms that the task of the tribunal is not to substitute its view for the employer’s.  The tribunal must decide in a gross misconduct case whether there was wilful and deliberate disregard for rules or policies and whether dismissal was an appropriate sanction.  The tribunal must look at whether the actions of the employer with regard to process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances.  The tribunal must then determine whether the dismissal was fair or unfair in accordance with equity and the substantial merits of the case.  As part of this assessment the tribunal must look at whether a lesser sanction was appropriate in the circumstances.

SOURCES OF EVIDENCE

8.	The tribunal heard oral evidence and had written statements from the claimant and her Trade Union official, Mr Albert Hewitt.  For the respondent the tribunal had the oral evidence and witness statements of:

(i)	Ms Rachel McKee who was a volunteer and a Director.  She was a member of the committee which investigated the wages error and the grievance by the Care Assistants;

(ii)	Mrs Nuala McAuley, a volunteer and Chair of the Board who dealt with the disciplinary process and, with another, took the decision to dismiss; 

(iii)	Mrs Alison Robinson, Board Member who was tasked, with another, to carry out the appeal;

(iv)	Ms Eleanor Jordan, Chief Executive of the respondent.

9.	The tribunal had regard to the documentation to which it was referred together with the claim and response forms.

FINDS OF FACT AND CONCLUSIONS

10.	At the outset of the hearing Mr Boomer clarified that there was no claim in relation to whistleblowing and that any references potentially suggesting such a claim in the claimant’s statement amounted to no more than background information.

11.	The tribunal found the following facts proven on a balance of probabilities and reached the following conclusions having applied the legal principles to the facts found.  This decision does not record all the competing evidence but sets out the principal finds of fact drawn from the evidence.

12.	The claimant was employed in a finance role from 3 September 2001 until 9 March 2018.  In the latter period of her employment she was the Finance & HR Manager.  Ms Flavelle was the claimant’s more junior colleague who also worked with financial matters.  

13.	The claimant was dismissed for gross misconduct.  Her disciplinary record had a verbal warning on it in relation to an incident with Ms Flavelle on 4 May 2017 but that verbal warning had expired.  The verbal warning was not taken into account by managers in the decision to dismiss according to their evidence.  

14.	The disciplinary charges for which the claimant was ultimately dismissed were set out in a letter of 21 February 2018 as follows:

“1.	Made overpayments without authority to your personal pension plan, 	True Potential, on behalf of WWC totalling £757.68 from October 2016 to April 2017.

2.	Made erroneous payment of £1080 on behalf of WWC on the 5th September 2017 To R Smith of which only £60 has been recovered.

3.	Issued a number of inaccurate wage slips to WWC employees, the result of this was a cost to WWC of £2252.85 and damage to WWC employee’s confidence in the accuracy of salary calculations.  Following the staff taking out a group grievance against WWC over this matter compensation of £1800 was paid to resolve this.”  

15.	The relevant managers were clear that the two examples of gross misconduct listed in the Disciplinary and Grievance Procedure were the following:-

“•	Theft, fraud, unauthorised possession of Company property, deliberate falsification of records or any other form of dishonesty….

 •	Causing loss, damage or injury through serious carelessness or gross negligence.”  

16.	The dismissal letter was dated 12 March 2018 and was signed by the Chair of the Board Mrs McAuley.  It outlined that the charge relating to the overpayment to another employee, Mr Smith, was regarded as misconduct whilst the other two charges, namely, the payments into the claimant’s pension plan and the inaccurate wages slips, constituted gross misconduct.  Mrs McAuley was however clear in her evidence in tribunal that all three charges, in her estimation, involved dishonesty on the part of the claimant and that the claimant was dismissed in relation to all three charges.

17.	The claimant lodged an appeal against the decision to dismiss and an appeal hearing conducted by Mrs Robinson and Ms Lamb took place on 29 March 2018.  The outcome of the appeal was that the decision to dismiss was upheld and this was communicated to the claimant by letter of 12 April 2018.

18.	The claimant covertly recorded both the disciplinary/investigatory meeting with Mrs McAuley which took place on 1 March 2018, and the appeal meeting of 29 March 2018.  An agreed transcript of each recording was put before the tribunal.

Inaccurate Wages Slips 

19.	This issue concerned the underpayment of a group of Care Assistants during the tax year 2016/2017 which resulted in them being paid below the National Minimum Wage for a period of months.  The disciplinary charge arising from these circumstances, which resulted in the claimant being dismissed for gross misconduct, was that she was alleged to have issued inaccurate pay slips which led to a loss to the organisation.  There was no question whatsoever of the claimant profiting from this mistake and thus there was nothing to suggest dishonesty on her part.

20.	The hourly rate issue came to light following a recruitment exercise when someone alerted a member of the Board to the fact that they had decided not to apply for a Care Assistant job because the hourly rate was below the National Minimum Wage.  The Finance Committee was later assured by the claimant at a meeting on 19 May 2016 that all Care Assistants were paid over the NMW.

21.	Increasingly fraught written and verbal encounters took place between the Care Assistants, Ms Flavelle, Ms Jordan and the claimant over the issue of the pay slips and the documents show an ongoing debate about how wages should be calculated.  

22.	The ultimate consequence of this issue being scrutinised was that the group of Care Assistants raised a group grievance in July 2017, they had to be paid back pay for a period and, through negotiation by their Trade Union, they each also received an ex-gratia payment in December 2017.  The total cost to the organisation, therefore, amounted to £2,252.00 for back pay and to over £1,000 in relation to the ex-gratia payments.

23.	The claimant’s point on this was that any inaccuracies in the calculation were not her fault but were due to Ms Flavelle who worked under her as it was Ms Flavelle who entered the information into the computer system.  When queries were raised with the claimant, she defended the calculations without checking them as she trusted that Ms Flavelle was correct in her calculations.

24.	The respondent’s point on this was that the claimant refused to accept that there was any inaccuracy on several occasions and she eventually reluctantly agreed to carry out the instruction of the Board to pay back pay to this group of employees.    The respondent’s position in tribunal was that Ms Flavelle was not responsible for payroll at all until a very late stage when she started to shadow the claimant after Ms Flavelle was nearing the completion of her SAGE course.  The respondent’s case was that it was the claimant who was responsible for inputting any inaccurate data and that, when the figures were queried, she refused to accept that there could be anything wrong.

25.	We have assessed all the evidence in relation to the issue of responsibility for payroll and our finding is that Ms Flavelle was more involved in payroll matters and at an earlier stage than was represented to us by the managers.  We so find, for the following principal reasons:

(i)	Whilst Mrs McAuley was adamant that from her personal knowledge she knew that Ms Flavelle did not have an involvement in payroll matters, she also agreed that she was rarely on site, and that she did not know that there was only one computer for accessing the payroll software and both the claimant and Ms Flavelle had equal access to that computer; 

(ii)	Whilst Ms Jordan stated that the claimant was the only registered user for the relevant computer, it was uncontested that Ms Flavelle could, and did, access the computer as part of her duties;

(iii)	“Supervision records” (ie performance records) for Ms Flavelle during the relevant period show that she was involved in payroll matters;

(iv)	Ms Flavelle took it upon herself (having obtained Ms Jordan’s permission to do so in the claimant’s place) to explain the wages calculation to the Care Assistants on 4 May 2017 when they asked about their wages calculation.  Ms Jordan asked Ms Flavelle to speak at the meeting with the Care Assistants in this regard on 5 May 2017.

(v)	Mrs McAuley’s evidence was that Ms Flavelle was involved in payroll from January 2017.  This was at odds with other evidence from the respondent’s witnesses that Ms Flavelle only started to shadow the claimant in this regard in May or June 2017.

(vi)	The claimant’s uncontested evidence was that she and Ms Flavelle worked closely together for years on finance matters.

(vii)	The claimant did not have a SAGE qualification and we accept the claimant’s evidence that such a qualification was not a pre-requisite for being permitted to input data for payroll.  

26.	The claimant went off sick on 25 September 2017 and returned to work on 21 February 2018.  At that point she was given a letter of suspension and a letter inviting her to the disciplinary hearing.

27.	Whilst we accept that Ms Flavelle had more involvement in payroll matters than the respondent’s managers alleged, we do not accept the claimant’s case that Ms Flavelle should have been held solely responsible for the accuracy or otherwise of these figures, especially when queries were raised.  We regard it as reprehensible that the claimant stood over the accuracy of figures when, on her own case, she did not know the basis of the calculation.  We also found it reprehensible for the claimant to maintain that she could rely on Ms Flavelle’s calculations without delving more into the matter, particularly in circumstances where the claimant was clear that she and Ms Flavelle had not had a happy working relationship for a long time.  In this regard, the claimant’s uncontested evidence was that in the last few years of working together Ms Flavelle refused to have her supervisions carried out by the claimant, and they were ultimately moved to separate rooms because of their difficult relationship.  

28.	We therefore find that the claimant bore some responsibility for the calculations which were inaccurate.  Indeed at all times the claimant accepted that she had some (but not all) responsibility for the inaccurate calculations as she was the senior manager and in charge of Ms Flavelle.

29.	We also do not understand why the claimant maintained her stance over several meetings and over a period even to the extent that she made it clear that she did not agree with the instruction given by the Board to pay the back pay.  As the Finance & HR Manager she agreed in evidence that she had ultimate responsibility for these matters but her case was that the actual mistakes were carried out by Ms Flavelle.

30.	In summary therefore, we find the stance of the claimant to be unreasonable in those circumstances and to be a factor in the assessment of contributory conduct.

31.	We are clear, however, that there was absolutely no suggestion of dishonesty on the claimant’s part in relation to the inaccurate wages slips.  We find it astounding that the managers took a view that this connoted dishonesty and maintained that view at tribunal.  The documents are clear that the claimant’s motivation in standing firm on the calculations was that she did not want the respondent to incur unnecessary costs.  Her belief that the figures were correct, was wrong but in no way dishonest.

32.	The claimant stated during the disciplinary process that Ms Flavelle was responsible for the calculation for the pay slips.  This was not investigated.  It was a fundamental defect that there was no probing investigation as to Ms Flavelle’s payroll responsibilities.  Mrs McAuley was very clear in her evidence that she simply took at face value Ms Jordan’s statement to her that Ms Flavelle was not responsible for payroll matters and that this was the claimant’s responsibility.  

33.	It was Ms Flavelle who had presented the information to do with the wages of the Care Assistants (alongside Ms Jordan) to the Board meeting in November 2017.  This led to a decision to investigate further and to suspend the claimant on her return from sick leave and to institute disciplinary proceedings.  

34.	There was a conflict for Ms Flavelle to be presenting the information to the Board when she had had involvement in the matters.  This would have been apparent to managers, or should have been clear to them, if they had probed the matter properly at a later stage as part of the claimant’s case was that it was Ms Flavelle, rather than she, who was responsible for the figures.

35.	In summary we find that at worst, the claimant was in charge of the information and in that sense, responsible for it.  She also would not admit the mistake for a period and this is a factor for contributory conduct.  The involvement of Ms Flavelle in the preparation of the figures should have been properly scrutinised and her representations, for example in relation to the claimant allegedly making mistakes in the past, would not have been taken at face value.  We find that these matters amounted to defects in the disciplinary process.

The Overpayment to Mr Smith

36.	This involved a mistake in September 2017 whereby a payment of £1,080.00 was not made to a consultant who had provided services but was, by mistake, paid to an employee of the respondent, Mr Smith.

37.	When this was brought to the claimant’s attention she immediately admitted her mistake and, indeed, offered to reimburse the organisation out of her own pocket.  She contacted Mr Smith to reach a written agreement with him that he would pay the money back in instalments as he had by then spent the money believing it to be a tax rebate.

38.	Ultimately, this was found to be misconduct on the part of the claimant rather than gross misconduct but managers were clear that this did contribute to the decision to dismiss the claimant and were also clear that it connoted dishonesty on the claimant’s part.

39.	The claimant made the valid point in the disciplinary process that this matter had been dealt with months before and she queried why it was being revived and included in the disciplinary process.  No satisfactory explanation was given to us for the revival of this matter.  Its revival lent weight to our finding that there was predetermination in the disciplinary process against the claimant.

40.	We find it astounding that managers characterised this as dishonesty as there was no suggestion whatsoever that the claimant profited from this, she immediately accepted her mistake when it arose, and she tried to remediate it.

41.	Ms Jordan asked Ms Flavelle (when the claimant was off sick) whether something like this had ever happened before and Ms Flavelle told Ms Jordan that in 2017 there had been an overpayment to someone which had been recovered by Ms Flavelle.  Ms Jordan’s evidence was that at some point after the disciplinary process and before the appeal she told Mrs McAuley about this other alleged incident and that this is the reason that it appears in the minutes of the appeal hearing as follows:-

	“●	On investigation this wasn’t the first time an erroneous payment had been made by Margaret Couchman on behalf of Windsor.  A payment of 619.00 was make to C Cardwell in March 2017 by Margaret.  It was seen and recouped by the administrator.  Margaret hadn’t reported this to management or her line manager.” (SIC).

42.	This information, taken into account by the appeal panel, came from Ms Jordan via Mrs McAuley and the source of it was Ms Flavelle.  This is an example of the inappropriate blurring of the lines between the different stages of the process.  It also shows how information from Ms Flavelle was accepted at face value when, if a proper investigatory approach had been adopted, her information would have been properly scrutinised or questioned and the claimant given an opportunity to dispute it.

43.	The claimant’s point at tribunal was that this allegation of a previous overpayment was never put to her at any point and she was thus never asked if it was true or the circumstances in which it was said to have arisen.  At tribunal the claimant denied the allegation about this alleged overpayment.  The difficulty for the respondent is that the source of this information was Ms Flavelle with whom the claimant had a poor relationship and on whom the claimant wanted to pin at least some of the blame for other issues which had arisen.

44.	The defects in this regard, therefore, were that:

(i)	This previous allegation was belatedly brought into the process by inappropriate means; 

(ii)	It blurred the distinction between the different stages of the disciplinary process; 

(iii)	The claimant never had a chance to raise any issue about the source of the information i.e. Ms Flavelle; and

(iv)	It was taken into account in the decision to uphold the decision to dismiss.

45.	Even on the face of the information recorded in the appeal meeting minutes there was absolutely no suggestion of dishonesty on the claimant’s part in relation to that prior allegation which occurred in March 2017 and the sum involved was recovered in full.

The Claimant’s Pension Payments

46.	This allegation which was found to amount to gross misconduct and to have connoted dishonesty on the claimant’s part related to the claimant increasing her pension payments over a seven month period from October 2016 to April 2017.

47.	Due to changes in pension provision the uncontested case made by the claimant was that the rate of monthly pension contributions, reduced to 1% for employee contributions and 1% for employer contributions which meant that those contributions in her case reduced to less than half their previous level.  

48.	The claimant’s case was that, when there was discussion with Ms Jordan in September 2016 about pensions, the claimant indicated that she was going to increase her pension payments by a percentage and Ms Jordan said that if she did that: “Windsor will have to match that” ie that the respondent would have to match that percentage in the employer contribution.  The claimant alleged that the Board knew all about the contributions increase as she presented the figures in her regular reports and she specifically thanked the Board for this matching of her contributions.  We accept the claimant’s point which was that the minutes of Board meetings were neither comprehensive nor accurate (for example on one occasion the minutes were apparently seconded by someone who is recorded as absent).  

49.	The respondent’s case was that this increase in employer contributions was never authorised, that when it was investigated Ms Jordan, Ms Flavelle and another member of staff denied that there was ever a meeting where this was authorised and that the claimant had therefore done this inappropriately and without permission.

50.	The investigation conducted by Mrs McAuley involved her eliciting statements from Ms Jordan and the other two members of staff because the claimant had mentioned that they were in the room when she was discussing it with Ms Jordan and thus might have overheard the conversation.  The claimant had also said that she had discussed her proposal to increase her contributions with Ms Flavelle and another in the context of encouraging them to do the same.  The statement from Ms Jordan stated as follows:

			“Minutes of Meeting Held 5th March 2018

Meeting held to discuss Margaret Couchman’s statement during her disciplinary meeting re employers and personal pension increase.

Present: Nuala McAuley and Eleanor Jordan

Nuala asked Eleanor if she had given Margaret permission to increase her employer’s pension contribution by match funding her increased employee’s pension contribution.

Eleanor stated that she had never given Margaret permission to increase her employer’s contribution to her pension scheme.”  

51.	The two witnesses provided statements which reflected each other verbatim and Ms Flavelle’s statement stated as follows:

			“Minutes of Meeting Held 5th March 2018

Present: Nuala McAuley and Ruth Flavelle

Meeting held to discuss Margaret Couchman’s statement during her disciplinary meeting re employers and personal pension increase.

Nuala McAuley asked Ruth if she had been present in a meeting with Eleanor, Martina and Margaret where Eleanor gave Margaret permission to match fund her employee’s pension to the employer’s pension.

Ruth stated that she had never been involved in a meeting with Eleanor, Martina and Margaret re Windsor Women’s Centre match funding Margaret’s personal pension increase.”  

52.	The claimant’s point at tribunal was that the specific question asked of the three members of staff was wrong in that she had never alleged that there was a meeting when it was agreed.   She also made the point that Ms Jordan did not take the opportunity to mention to Mrs McAuley that there had been previous discussions about pensions.  Ms Jordan alluded to this in her witness statement for these proceedings where she stated:
                                                                                                                                                                                                                                                                                                                                                                     
“I remember some general discussions between myself and other staff members about the changes to the pension.  Based on my experience I advised staff that they should up their employee contributions if they were able to do so.  However, I never agreed with Mrs Couchman that Windsor would match her contributions if she were to increase her pension’s contributions.  I did not give her authorisation in September 2016 to increase the Centre’s employer pension contributions as she alleges in her witness statement.  I would not have the authority to do so, as Finance and Personnel Manager, Mrs Couchman was aware of the necessary procedures to follow.”  

53.	The respondent’s point in tribunal was that the claimant, in her disciplinary process, said that she did not think that she needed written confirmation because Ms Jordan had previously done something similar about 9 or 10 years beforehand.  In the course of preparation for the tribunal hearing relevant documents were produced for that period which did not show an increase in Ms Jordan’s contributions to her pension.  The claimant then wanted to go back further to get documents from 2001 onwards and these documents were no longer in existence according to the respondent.

54.	We have to look at what was before the panel at the time and what was raised by the claimant at the time.  At the time the investigators did not try to find those documents but even if they had they would not have shown an increase in pension contributions.

55.	What concerns us about this is that the claimant clearly had a dispute with Ms Jordan about whether authority had been given.  Despite this, Ms Jordan was not probed on this and in her evidence to this tribunal Ms Jordan eventually agreed to some extent with the claimant’s account ie that there was a conversation about pensions and that Ms Jordan encouraged the claimant to increase her contributions and that the claimant indicated that she would do this.  

56.	Mrs McAuley took a statement from Ms Jordan and others in relation solely to a narrow point on pension contributions and did not take the opportunity to ask Ms Flavelle or Ms Jordan formally about Ms Flavelle’s responsibilities and did not probe into any documents to see if what the claimant was saying was correct.

57.	The claimant’s evidence was that she presented regular reports on finances which included issues about staff costs.  Her evidence was that at the next meeting after September 2016 she thanked the Committee in relation to the pension payments.  It is not in the note of the meeting and we accept her evidence that those notes were neither full nor accurate.

58.	We have assessed carefully all of the evidence on this matter and find as follows.  There was a conversation about pensions between the claimant and Ms Jordan, the claimant said that she was going to increase her pension contributions and she took from Ms Jordan’s comment “Windsor will have to match it” that the respondent would match it.  We find that, at worst, the claimant was guilty of making assumptions about what she had been authorised to do.  

59.	Our assessment of this is that it is an example of the ad hoc way business was periodically conducted in this organisation as this approach came across to us from the documents as a whole.  This explains why the claimant believed that she had authority from Ms Jordan.  We find that, at worst, it was a misunderstanding on the claimant’s part, ie she believed from Ms Jordan saying “Windsor will have to match it” that this constituted authority for her to raise her contributions.  Ultimately this was always going to be discovered as the increase in payments was so high that it would have jumped out of any annual report from the pension provider.  We find that there was nothing underhand about this on the claimant’s part.

60.	In the event the claimant soon decided to reduce her payment herself because she could not afford it and she reduced it to 1% with the employer paying 2%.  The claimant’s explanation for the disparity in these two figures was that it was Ms Flavelle’s mistake.  Her point was that Ms Flavelle filled in the details wrongly on all the Department forms and they were signed by the claimant without checking.  In the application forms for the Department grant each person’s contributions are set out and this shows that the claimant was at a lower contribution figure.  The claimant stated that she signed the final page without checking the calculations.  This latter point is relevant to contributory conduct.

61.	Assessing all of the evidence, as a whole, we find it unreasonable for the employer to have regarded this as an issue of dishonesty.  At worst, it was sloppy or negligent of the claimant to take this as a verbal authority without confirming it in writing.  This relates to the appropriateness or otherwise of the penalty of dismissal and also relates to the contributory conduct issue.

62.	Managers’ evidence was very clear that this is a charitable organisation doing work in the community which works in a collaborative way with staff.  This may provide an explanation, but not an excuse, for the lack of rigour in dealing with the allegations against the claimant.  This was an employee of 17 years’ standing whose uncontested evidence was that when she joined the organisation their finances were shambolic and she turned the finances round.  The claimant’s further uncontested evidence was that she and Ms Flavelle worked very closely and harmoniously together until the last few years of the claimant’s employment from 2015 when things changed dramatically, to the extent that they were moved in September 2017 to separate offices and that Ms Flavelle refused to be supervised by her.  Neither of these important factors featured in the disciplinary process and, in particular, they did not feature in the assessment by managers of the reliability and veracity of the evidence of both Ms Flavelle and the claimant.  

63.	There had also been a fractious encounter between the claimant and Ms Flavelle in May 2017 about the Care Assistants’ pay which led to Ms Flavelle raising a grievance about the claimant and led to the claimant receiving on 29 August 2017 a six-month verbal warning for her language in that incident.  This history was not taken into account when assessing the claimant’s evidence that Ms Flavelle was to blame for key matters and in assessing the extent of Ms Flavelle’s involvement in payroll.  It was also not considered when assessing the information brought forward by Ms Flavelle against the claimant about the alleged previous incident of mistaken overpayment.  

Procedural Defects

64.	Mr Boomer’s submission was that there was a breach of the SDP because a stage had been missed out.  His point was that the claimant was disciplined at investigatory stage.  We reject that contention and find that the SDP was complied with as set out below.

65.	There was a step one letter in which the claimant was invited to a disciplinary meeting set for 1 March 2018 and she was told the charges against her and that she was at risk of dismissal.  The disciplinary meeting that took place was called a disciplinary meeting and in the letter setting it up the claimant was told she could be accompanied.  She attended that meeting and was given the chance to speak.  The investigation had taken place during the claimant’s absence on sick leave and the investigation led to the formulation of three charges set out in the step one letter of invitation to the disciplinary meeting as follows:-

		“1.	Made overpayments without authority to your personal pension plan, True Potential, on behalf of WWC totalling £757.68 from October 2016 to April 2017.

		2.	Made erroneous payment of £1080 on behalf of WWC on the 5th September 2017 To R Smith of which only £60 has been recovered.

		3.	Issued a number of inaccurate wage slips to WWC employees, the result of this was a cost to WWC of £2252.85 and damage to WWC employee’s confidence in the accuracy of salary calculations.  Following the staff taking out a group grievance against WWC over this matter compensation of £1800 was paid to resolve this.”

66.	We find however that, other than in relation to the minimum procedure under the SDP, the procedure adopted in this case was defective to the extent that it rendered the decision to dismiss unfair.  The investigation was inadequate and fundamentally flawed to the extent that we find that there was predetermination of the outcome.  For these reasons the disciplinary process was unfair and the decision on the appropriate penalty was unfair.  

67.	The key procedural and other defects are as follows.

	(1)	From our assessment of all the evidence there was a predetermination of the outcome of the disciplinary process.  This is clear to us from the lack of investigation into the points raised by the claimant, particularly about Ms Flavelle’s role in payroll.  There was a lack of probing of the information given by Ms Jordan and this was taken at face value despite the fact that the claimant was in dispute about a key encounter with Ms Jordan about the authority for increasing the pension payments.  There was no more than a cursory investigation into the detail of the conversation that took place between the claimant and Ms Jordan about the pension contributions.

	(2)	The evidence is clear that there was no real separation between the disciplinary and appeal panels.  There was no proper investigation and key points were not put to the claimant that counted against her.

	(3)	The appeal panel believed that its role was to see if there was any new evidence and then to bring that back to the disciplinary panel to see what their view was.  Indeed the two panels met on 29 March 2018 and jointly decided to uphold the decision to dismiss.  There was therefore an inappropriate and unnecessary mixing of information and responsibilities between the disciplinary panel and the appeal panel.  The organisation was big enough for it to be able to maintain appropriate separation between the disciplinary and appeal stages.

	(4)	A previous alleged overpayment counted against the claimant at appeal stage when this was never put to the claimant for her side of the case and she thus had no chance to deny it nor to question the source of the information namely Ms Flavelle.  The claimant was thus ignorant of a key factor that led to the decision to dismiss.

68.	We find that the inaccurate pay slips and the overpayment to Mr Smith were wholly unreasonably characterised as dishonesty offences.  It was clear that the claimant was blaming Ms Flavelle to some degree for the inaccuracies in the wages yet Ms Flavelle’s answers were taken at face value and her prior involvement in building the case against the claimant was not scrutinised.  

69.	In addition, imposing the penalty of dismissal was unfair in the circumstances given that two of the charges were regarded as indicating dishonesty and this was wholly unreasonable.  If a proper investigation had been done into the pensions point our finding is that the claimant would have, perhaps, been given at most a final written warning for sloppy procedures and for accepting or assuming that she had authority for something which caused a cost to the organisation.  Again, we do not believe this indicated dishonesty but was an indication of the sloppy procedures, generally, in the organisation.  

70.	The claimant was however responsible to some degree for her downfall and this is relevant to contributory conduct.

Polkey Deduction

71.	The issue here is whether or not, if a proper procedure had been followed, the claimant would have been dismissed anyway.  We can assess the likelihood of that at a percentage.  The key procedural defects are set out above.

72.	We are not convinced that there should be a Polkey deduction at all.  If a proper procedure had been followed we do not believe that the claimant would have been found guilty of two of the charges in that, at worst:

	(1)	She might have been found deficient in her supervisory role of Ms Flavelle.  She might also validly have been criticised for digging her heels in and not checking calculations especially when queries were raised.  Our finding is that the overpayment to Mr Smith was inappropriately added to the allegations against the claimant as she reasonably believed that that issue had been dealt with some months before.

	(2)	She might have been found blameworthy for making an inappropriate assumption about receiving authority to increase pension contributions or that her procedures were deficient in that she should have obtained confirmation in writing of any authority.

73.	At worst we find that the claimant would then likely have received a final written warning.  In the circumstances in this organisation, we do not find that a dismissal was warranted particularly in view of the claimant’s long service and record.  The respondent’s witnesses were clear that the expired verbal warning on her record (which stemmed from difficulties between her and Ms Flavelle following the controversy over the wages calculation for the Care Assistants) did not feature in the decision on the appropriate penalty.

Contributory Conduct

74.	The issue of contributory conduct is a different issue to the Polkey deduction issue in that we must look at whether or not the claimant was guilty of conduct prior to dismissal which caused, or contributed to, her dismissal.

75.	The test set out in the Court of Appeal Decision of Nelson No 2 [1980] ICR 110 sets out the sort of conduct which might be regarded as amounting to contributory conduct describing it as: “Perverse, foolish, bloody-minded or unreasonable in the circumstances.”

76.	We find that there are grounds for making a contributory conduct deduction in the following circumstances:

	(i)	The claimant failed to exercise proper supervision over Ms Flavelle and in particular stood over Ms Flavelle’s calculations without checking them;

(ii)	The claimant refused to accept that there were inaccuracies in the wages slips, repeatedly, over a period and reluctantly agreed to an instruction to pay the underpayment to the Care Assistants and yet she still did not check the calculations thoroughly enough;

(iii)	The claimant did not obtain confirmation in writing about her pension contributions and she relied for her authority on a comment by Ms Jordan.    This was foolish in circumstances where she was increasing by six times the monthly contribution to her pension so that it increased from £21.65 to £129.89 per month for what transpired to be a period of seven months;

(v)	The claimant signed the claim sheets for the Department’s funding without checking the accuracy of figures prepared by Ms Flavelle.  This was reprehensible of her as there had been issues in relation to the relevant computer portal so it was especially important to check the figures.  The figures were not correct and this lent further weight to the respondent’s decision to dismiss her. 

77.	Ms McIlveen pressed for a 100% reduction.  Taking account of the factors set out above, we find that the reduction should be set at 30% as it relates to the pensions issue but particularly to the claimant’s insistence that the calculation of wages was correct.  Our reason for this is that what was in issue on the Care Assistants’ wages was whether or not they were being paid the National Minimum Wage and this was thus a very serious matter.  When it became apparent that they were not being paid the National Minimum Wage it was not good enough for the claimant to insist that the calculations were correct without checking them thoroughly herself.  Her account to us that she simply relied on what Ms Flavelle had told her was blameworthy conduct especially when the two women were on such bad terms.  It amounted to foolish, bloody-minded and unreasonable conduct and for this reason, we find that the deduction needs to be more than minimal but much less than 100%.

COMPENSATION

78.	A schedule of loss was produced by the claimant’s side and the figures were agreed subject to liability.  The period for future loss was not agreed.

79.	Mr Boomer confirmed that the state benefit received by the claimant until 17 August 2018 was Employment Support Allowance (ESA).  This will be subject to recoupment and is therefore not deducted from our calculation of compensation.

80.	The contributory conduct percentage applies to both the basic award and the compensatory award.

81.	The claimant is now aged 63 and, to her credit, she has started a business with her two sisters providing alternative therapies such as aromatherapy, reflexology and massage.  The claimant obtained a qualification in these therapies approximately 8 or 9 years ago.  The business was started in August 2018 and, due to start-up costs and buying equipment and materials, the claimant does not envisage making income from that until early in 2019.  We accept it will take a period of time for the claimant to build up that business.

82.	Whilst Ms McIlveen explored in cross-examination whether the claimant had failed to mitigate her loss by applying for new jobs we find that the respondent has not discharged the burden of showing failure to mitigate loss.  The claimant stated that she applied for two jobs which she was not offered and she started her business to make use of the skills she already had.  We accept that this was a reasonable course for her to follow in the circumstances.

83.	The fact that the claimant was a Finance Manager who was sacked for misconduct relating to dishonesty would clearly have militated against her obtaining a job in finance.  With the issuing of our decision the claimant will be in a better position to obtain another job, albeit not necessarily in finance or at the level that she was earning with the respondent.  Realistically the claimant’s age of 63 and her proximity to her intended retirement age (which she stated to be 66), militates against her being able to work up to the same level of income that she received with the respondent.  

84.	Taking account of the above factors we have decided that it is just and equitable to award the claimant approximately nine months’ future loss (to 16 August 2019) making a total of 18 months’ net pay from the EDT.  The calculation of compensation is set out below.

Compensation

Effective date of termination (the EDT): 9 March 2018

Gross and net earnings exceed the statutory maximum  

Statutory maximum:								£     500.00

Basic Award (agreed):							£12,750.00

Compensatory Award	

Loss of Statutory Industrial Rights (agreed):				£     350.00

Pension Loss (pro rata from agreed figure):				£     468.00

Loss from EDT to date of hearing	ie 16 November 2018	
	
36 weeks: 									£18,000.00  (b)

Loss of wage from 16 November 2018 to 16 August 2019

39 weeks:									£19,500.00

Total Compensatory Award:						£38,318.00

Add basic award:								£12,750.00

TOTAL:	£51,068.00

Less 30% contributory conduct:						£15,320.00

Net compensation								£35,748.00  (a)

Recoupment Table

85.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended by the Social Security (Miscellaneous Amendments No 6) Regulations (Northern Ireland) 2010 and your attention is drawn to the attached notice:

	(a)	Monetary award £35,748.00

(b)       Prescribed element £18,000.00

(c)	Period to which (b) relates: 9 March 2018 to 16 November 2018.

(d)	Excess of (a) over (b) £17,748.00
		
86.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing:		13, 14, 15 and 19 November 2018, Belfast.

Date decision recorded in register and issued to parties: