THE INDUSTRIAL TRIBUNALS

CASE REFS:	2277/03
897/03

APPLICANT:		John Gary Wylie

RESPONDENT:		Reliance Security Services Ltd

DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed and the tribunal awards him £5,677.76 in compensation.  Furthermore the unanimous decision of the tribunal is that the applicant is not a disabled person within the meaning of the Disability Discrimination Act 1995.

Appearances:
The applicant was represented by Ms Boreland.
The respondent was represented by Ms D Gardiner, First Business Support.

Extended Reasons

1.	The issues for the tribunal to determine are:-

•	was the applicant unfairly dismissed;

•	was the applicant a disabled person; and

•	if so, was the applicant treated less favourably for a reason related to his disability.

2.	The tribunal found the following facts proved on a balance of probabilities in relation to the applicant’s dismissal.

2.1	The applicant was employed by the respondent in December 2000 as a Security Guard.  The applicant’s original employer was Maybin but the contract was transferred to the respondent at a later stage and constituted a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981.

2.2	In or about June 2002, a power cut occurred at the respondent’s premises.  The power cut was caused by the generators running out of fuel.

2.3	Consequently, the site manager, Adrian Smyth, sent an e-mail to all security guards expressing his concern that security guards had failed to notice that the generators had been running continuously for 26 hours.  He stressed the importance of being vigilant while carrying out all patrols.

2.4	The applicant replied to Mr Smyth’s e-mail and the e-mail was addressed only to him.  The e-mail said:-

“When security guards R on an external patrol the generator is always running.  So how do U expect the security guards 2 be able 2 tell if there has been a power cut or not.  And if G.S Halls had carried out there (sic) checks the generator would not have run out of fuel”

2.5	The e-mail was forwarded to the customer by the respondent.

2.6	The customer lodged a formal complaint in relation to ‘the attitude of the              above-mentioned guard’.  The customer went on to express his dissatisfaction with the tone of [the applicant’s] response when replying to an e-mail sent by Adrian as Security Manager.

	2.7	The applicant was then asked to attend a disciplinary interview on 30 August 2002.

2.8	The applicant was simply told that the interview was in relation to ‘a recent customer complaint involving yourself’.  The applicant was not informed of the disciplinary charges he was facing.

2.9	At this meeting, the applicant’s representative, Mr Dickey, explained the applicant’s communication difficulties and that he ‘sometimes did not come across as he would like and probably didn’t intend to be negative or aggressive’.

2.10	The tribunal accepts that the applicant was given a First Written Warning which was to remain on his file for 12 months.  Although the applicant did not understand the implications of the warning, the tribunal accepts that it was sent to him.  We accept the evidence of the respondent that it is not the practice of the company to require employees to sign acceptance of a written warning.

2.11	In or about February 2003 it come to the attention of management that a number of employees, including the applicant, were abusing the telephone system and were fraudulently obtaining tea and coffee on the customer’s premises.

2.12	An investigation was carried out into the matter.  It was concluded that Mr Tully had run up a telephone bill of £174.39, Mr Miskelly had run up a bill of £90.37, Mr Thompson Junior had run up a bill of £29.74 and the applicant had run up a bill of £30.46.  The applicant, Mr Tully, and Mr Miskelly had all telephoned premium rate numbers.

2.13	A report into the fraudulent use of tea and coffee, concluded that the fraudulent ‘catering swipe card was kept under the control of the site supervisor, Mr Benson, which was only used during his work pattern … Monday – Friday 1700 – 1900 only.  The card was never used outside these times or while the site supervisor was on leave.”

2.14	The respondent’s disciplinary Code of conduct sets out the procedure for dealing with misconduct.  Misconduct or a breach of discipline will result in a written warning and there is no prescribed number of warnings which may be given.  The Code also states that “Final Written Warnings will clearly state that repetition of a specified misdemeanour or any further breaches of discipline … will result in dismissal without notice”.  Failure to observe a Final Warning for misconduct will result in dismissal.  An employee may be summarily dismissed for gross misconduct.

2.15	The procedure adopted by the respondent and applied to all employees in this instance was that an employee who had no previous written warnings and who was found to have committed either the telephone abuse or the fraudulent use of the tea/coffee card was given a written warning to be recorded on his personnel file for 12 months.  An employee who had no previous written warnings and was found to have committed both telephone abuse and the fraudulent use of the tea/coffee card was given a First Written Warning for one of the offences and a Final Written Warning for the second offence.

2.16	The applicant was the only employee dismissed.  He was found to have committed both the telephone abuse and the fraudulent use of the tea/coffee card.  It was contended, by the respondent, that the reason the penalty meted out to the applicant was dismissal was because the applicant had a previous written warning arising out of the e-mail which he had sent to Adrian Smyth in 2002.  The respondent therefore gave the applicant a Final Written Warning for one of the acts of misconduct in question, and dismissed him for the other.

2.17	However, the letter dismissing the applicant with immediate effect gave no reason for the dismissal, referring to the applicant’s attendance at “a disciplinary interview on 13 February 2003 regarding two incidents at the Halifax site”.  Following an unsuccessful appeal, a letter from Dougie Wilson, Operations Manager, stated:-

“Further to the appeal hearing held on 12 March I am writing to confirm the decision to terminate your contract of employment on the grounds of gross misconduct is upheld …”.

[Emphasis added]

2.18	 The tribunal considered the notes of the appeal hearing.  In the penultimate paragraph, Dougie Wilson is recorded as saying:-

“I have listened to what you’ve said, and read your notes you are aware that the telephone and coffee cases are two different incidents?”

		The applicant is recorded as having nodded.  Dougie Wilson is then recorded as saying:-

“Because you already have one warning on your file and then these two incidents resulted in two more warnings – therefore dismissal, I am going to uphold the original decision.”

2.19	The tribunal therefore accepts that the respondent treated its disciplinary code of conduct as entitling it to dismiss the applicant for misconduct, and that was the reason for dismissal, rather than gross misconduct.

3.	Conclusion

The tribunal unanimously concludes that the applicant’s dismissal was unfair for the following reasons:-

(1)	Although the respondent treated its disciplinary code of conduct as entitling it to dismiss the applicant for misconduct, we do not consider that it acted reasonably in so doing.  The purpose of a warning is to enable an employee to mend his ways and to ensure that unacceptable acts are not repeated.  The respondent’s code clearly recognises this because it states that a “Final Written Warning will clearly state that repetition of a specified misdemeanour or any further breach of discipline … will result in dismissal without notice.  In order to further emphasise this point, the code says that “failure to observe a final warning” for misconduct will result in dismissal.  By treating both offences separately, and giving separate penalties, the respondent reached the decision to dismiss without giving the applicant any opportunity to “observe the final warning”.  This is clearly contrary to its own procedures.  A reasonable employer would have followed its procedures in our view.  The fact that the same procedure was applied to all employees does not in our view alter the fact it was unreasonable.

(2)	All employees in the “tea/coffee incident” were treated equally and yet, the position of the site supervisor and the site manager were quite different from the applicant and the other employees.  Mr Benson was in a position of authority over the applicant and the other security officers and the fraudulent use of the card was wholly within his control.  Mr Smyth the site manager was clearly aware of what was going on and participated in the use of the card.

(3)	Further, in our view the respondent should have taken into account the fact that other employees had abused the telephone system to a much greater extent than had the applicant.

(4)	Although the applicant did have a previous written warning on his file, that related to a very different incident, namely an e-mail which was regarded as unacceptable in tone, and which the applicant had not intended the customer to see.  These incidents were quite different.

Taking all those matters into account, the tribunal is not satisfied that the decision to dismiss was within the band of reasonable responses.

4.	The tribunal found the following facts proved on a balance of probabilities in relation to the applicant’s claim that he is a disabled person within the meaning of the Disability Discrimination Act 1995:-

4.1	The applicant sustained a serious head injury as a result of a road traffic accident in or about 1991.

	4.2	In a medical report dated 7 May 1991 his condition was described as follows:-

“ … He has the typical problems of a post concussion syndrome.  He has not been able to get back to his work as a machinist in a clothing factory.  He has little energy, difficulty with concentration and memory as well as a tendency to be rather irritable and difficult at home.  He has not had a fit and is not on any anticonvulsant medication.

… He continues under the Joss Cardwell Centre as regards rehabilitation.  I think that he may have a lot of difficulties in getting back into the community.  We will keep him under review …”.

4.3	The only other medical evidence produced was a letter dated 27 October 2004.  It referred to the applicant’s attendance at psychiatric services in January 2004 when he was considered to be suffering from a depressive episode.  He was referred to the neuropsychiatry department for a second opinion on his medication and it was queried whether the after-effects of the road traffic accident could be contributing to his symptoms.

4.4	The tribunal accepts the applicant’s evidence that he sometimes had difficulty expressing himself, and that he could be perceived as negative and aggressive without intending to appear so.

4.5	The tribunal also accepts his evidence that he would sometimes forget to carry out basic everyday chores such as preparing food, feeding the cat, putting on the washing machine.  If he were not prompted to do these things they might not get done.

4.6	The tribunal accepts that it was as a result of his family’s concern that the applicant sought medical help in or about January 2004.  The applicant was not aware that he had a problem, but it was clearly apparent to his family and partner.

5.	The Law

The Disability Discrimination Act 1995 defines a disabled person as someone who has ‘a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’.  The burden of proof is on the applicant to show that he satisfies the definition.

6.	The time at which the tribunal must assess whether there is an impairment which has a substantial adverse effect on normal day-to-day activities is the date of the alleged discriminatory act, in this case 13 February 2003.  (Cruickshank  v  VAW Motorcase Ltd [2002] IRLR 24, EAT.)  If however the issue is whether the impairment has a long-term effect, the question of how long an impairment has lasted or is likely to last is to be determined at the date of the tribunal hearing.

7.	It is clear that mental impairments resulting from or consisting of a mental illness are only included if the mental illness is ‘clinically well-recognised’.

However, paragraph 13 of the Statutory Guidance on Matters To Be Taken Into Account In Determining Questions relating to the definition of disability states that the term includes a wide range of impairments relating to mental functioning, including learning disability.

8.	In Morgan  v  Staffordshire University [2002] IRLR 190, Lindsay J described the various categories of mental illness encompassed by the Act.  He then went on to describe another category of mental impairment:-

“If, as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness, then such a state could be accepted as a mental impairment within the Act because the statutory definition is inclusive only, rather than purporting to exclude anything not expressly described by it.  This fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific evidence to support its existence.”

[Emphasis added]

9.	The tribunal has no medical evidence before it as to the applicant’s condition at the date of his dismissal.  The only evidence is a report shortly after the applicant’s accident in 1991, and a report detailing his attendance at psychiatric services in January 2004.  There is no conclusive diagnosis that the applicant’s ‘depressive episode’ was related to the injuries sustained in the road traffic accident.

10.	The tribunal is not satisfied, on the medical evidence, that the applicant was suffering from a mental illness or ‘from a state recognisable as mental illness’ according to medical opinion.

11.	The tribunal accepts that it can be very difficult for an unrepresented person to obtain the necessary medical evidence to satisfy the definition of disability.  However, the legal onus is on the applicant to do so, and in the absence of such evidence the tribunal must dismiss the aspect of the applicant’s claim.

12.	Contributory Fault

The respondent submitted that if the tribunal concluded that the applicant had been unfairly dismissed, the tribunal should find that the applicant contributed 100% to his dismissal, owing to  his conduct leading to his dismissal.

13.	The tribunal is not satisfied that the applicant contributed to his dismissal at all.  The clear evidence is that the respondent did not consider either the ‘tea and coffee’ incident, or the telephone abuse as offences constituting gross misconduct, either individually or collectively.  The application of the disciplinary procedures in our view was unreasonable and unfair, and led to the decision to dismiss the applicant.

14.	The tribunal awards the applicant £ 5,617.76 compensation for unfair dismissal.

	Basic Award

		(i)	Complete years of service					2

		(ii)	Age at dismissal						32

		(iii)	Week’s pay (gross)						£242.88

		(iv)	Years in which not below 41 years				0

		(v)	Years below 41 and more than 22				2

	Accordingly

	One times weekly income x 2  =  £485.76

	Compensatory Award

		(1)	Loss of wages from dismissal on 13 February 2003 until 18 August 2003:-

				£192.00 x 26 weeks 	 =	£4,992.00

		(2)	Loss of statutory rights  	=	£   200.00

	Recoupment

The applicant received Jobseekers Allowance from 14 February 2003 – 18 August 2003 @ £54.65 per week.  The Recoupment Regulations apply to this decision.

	The amount of the Prescribed Element is 26 weeks @ £192.00  =  £4,992.00.

The dates of the period to which the Prescribed Element relates are: 13 February 2003 – 18 August 2003

	The amount by which the monetary award exceeds the Prescribed Element is £685.76.

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

Chairman:

Date and place of hearing:		8 December 2004, Belfast

Date decision recorded in register and issued to parties: