THE INDUSTRIAL TRIBUNALS     

CASE REF:    2788/11     

CLAIMANT:	Blaithin Fagan

RESPONDENT:	Sainsbury’s Supermarket Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mr J Magennis
	Mr N Jones

Appearances:

The claimant was represented by Mr Gerard O’Neill.  Although Mr O’Neill did not classify himself as such he appeared to be representing the claimant as a “McKenzie Friend”.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by McGrigors LLP.

SOURCES OF EVIDENCE

1.	The claimant gave evidence on her own behalf.  Ms Mary McDonnell and Mr Andrew Relf gave evidence on behalf of the respondent.

2.	Additionally, each party had provided a bundle of documents for the tribunal.

THE CLAIM AND THE DEFENCE

3.	The claimant claimed that she had been unfairly dismissed and the respondent denied this claiming that she had been fairly dismissed for misconduct.

THE RELEVANT LAW

4.	The relevant law in relation to unfair dismissal is found in Articles 127 and 130 of the Employment Rights (Northern Ireland) Order 1996.  Additionally, the panel were referred to various cases in the submissions of both parties.

THE FACTS

5.	The claimant was employed by the respondent as a Customer Service Assistant working in the Armagh branch of the respondent’s chain of supermarkets.

6.	Although Mr O’Neill sought strenuously to show that the claimant had not been provided with appropriate documentation, in particular an employee handbook from which she could find out that certain types of behaviour were categorised as gross misconduct, the tribunal accepted that the claimant had been provided with a contract of employment and an employee handbook.  The reason for this finding by the tribunal is that the claimant had signed a receipt for the handbook as part of her contract of employment.  While the terms of the claimant’s employment may have changed without this change being reflected by an updated contract, the tribunal considers that the claimant still had a contract of employment with the respondent and as such she was bound by a duty of trust and confidence to her employer.  Mr O’Neill in the course of his submissions indicated that as it had come out in the course of the proceedings that an updated contract had not been provided contrary to Article 36 of the Employment Rights (Northern Ireland) 1996, the tribunal should automatically compensate the claimant for this failure.  However, this claim was not made in the claimant’s originating application to the tribunal.  Furthermore, there was no application made to the tribunal in the course of the hearing on behalf of the claimant to amend her originating application to include such a claim.  Additionally, as the claimant was dismissed on 11 October 2011 and this claim was not included in her original claim to the tribunal, the provisions of Article 43(4)(a) apply in relation to this matter.  There were no submissions made in connection with Article 43(4)(b) that the additional claim could be considered in a situation where it was not reasonably practicable for the claim to be made before the end of that period of three months.  As no such application was made, the tribunal considers that it does not have jurisdiction to consider this claim.

7.	The respondent operates a Nectar card point scheme by virtue of which points are awarded for money spent in the respondent’s operation.  Additionally, there was a category of vouchers that were issued to new Nectar card holders.  Both staff and customers of the respondent can accrue Nectar points.

8.	The respondent has a computer monitoring system called “Eagle Eye”.  This system surveys and analyses the points accrued on Nectar cards.  It was through this system that the respondent was alerted to the unusual nature of the claimant's transactions on her Nectar card.  Specifically, it was noted that the claimant had acquired 3,762 points on her Nectar card in five days, in comparison to 434 points previously picked up over a period of 17 days.

9.	The claimant was asked to attend a meeting with the Commercial Manager, Eimear Gill, in connection with the allegation that she had misused her Nectar card to obtain points which were not hers.  The claimant was advised of her right to be accompanied but declined the offer.  The claimant admitted the allegations and, with her consent, a personal search was conducted.  A further four coupons were found in her pockets and she admitted they had probably been issued to customers with their receipts at the self-scan checkouts.  There were also coupons found in the claimant’s purse.  The claimant was suspended on full pay to allow further investigation.

10.	There was a further investigation meeting with the claimant on 6 October 2011 and this resulted in the claimant being invited to attend a disciplinary hearing on 11 October conducted by Ms Mary McDonnell, the Deputy Store Manager.  During the second investigatory meeting the claimant said that where she had said in the first meeting that her actions were “intentional” she actually meant to say that they were “unintentional”.  She indicated that she had dyslexia and sometimes said the wrong thing.  This was the extent of her reference to her condition during this meeting.  The claimant declined the right of accompaniment.

11.	The allegation of misuse of Nectar card points was put to the claimant and she accepted that she had done this.  She made no reference to her condition of dyslexia being in any way relevant to her actions in this meeting.  Although she accepted what she had done, the claimant indicated several reasons why she considered that her behaviour was unintentional:-

	(1)	that she did not understand what she was doing was wrong;

	(2)	that she had them in her pockets and had intended to take them to dispose of them in a bin but there were no bins on her checkouts; and

	(3)	she did not think about what she was doing.

12.	Ms McDonnell adjourned to consider her decision and she indicated to the claimant that she was going to dismiss her for gross misconduct and the claimant was escorted from the store.

13.	A confirmatory letter dated 13 October 2011 was sent to the claimant.  She was advised in this letter of her entitlement to appeal the decision in writing to Mr Andy Relf, the Store Manager.

14.	By a letter dated 24 October 2011, the claimant appealed to Mr Relf.  In this letter, she made some comments which weighed with Mr Relf in the consideration of her appeal and these were “...what I have done was incredibly stupid of me.  I have cashed coupons that did not belong to me because, I suppose, deep down I thought I could get away with it and because naively, I thought I was not hurting anybody.”

15.	The claimant accepted what she had done saying:-

		“The facts are undeniable.  I used coupons that did not belong to me and added them to my Nectar card.  The investigation fully unearthed the facts.”

	Essentially, the claimant asked for a second chance.

16.	The claimant did not indicate that she had not been trained on the Nectar card scheme but did allege that she was “unaware of the procedures for tearing up coupons”.  These points weighed with Mr Relf and were instrumental in him reaching the decision to dismiss the claimant’s appeal.  It was also notable that the claimant did not raise dyslexia in her appeal as a reason for her behaviour.

CONCLUSIONS

17.	In a misconduct case the guidance given in the case of British Home Stores  v  Burchell [1978] IRLR 379 states that the employer must show:-

	(a)	that he genuinely believes the employee was guilty of the misconduct in question;

	(b)	that he had reasonable grounds for that belief; and

	(c)	in forming that belief he had carried out as much investigation as was reasonable in all the circumstances.

18.	Mr O’Neill submitted strongly that the respondent had failed to comply, particularly with paragraph (c), of that test in certain important respects.  He pointed out that it would have been reasonable for the respondent to investigate the claimant’s assertion that she had dyslexia to find out how that impacted upon her understanding of the requirements of the Nectar scheme and her behaviour generally.  He also contended that as the respondent had not properly drawn to the attention of the claimant that misuse of the Nectar card scheme was a dismissible offence, then she in fact should not have been dismissed for this offence.

	The tribunal considers that by virtue of the Eagle-Eye monitoring scheme the employer did have reasonable grounds to genuinely believe that the employee was guilty of the misconduct in question.  No challenge to the operation of the scheme was made.  In general the claimant and her representative accepted that the established facts were not able to be denied.

19.	Where there has been an admission of wrongdoing in a disciplinary process, it is settled case law that the respondent does not have to carry out the greater range of investigation that would be required if wrongdoing was disputed.  However, the tribunal noted that in this case there were two investigatory meetings before the disciplinary and appeal meeting stages.  The tribunal is not able to criticise the respondent for failing to look into the suggestion that dyslexia affected the claimant’s understanding, because the claimant only raised this condition in passing in the second investigatory meeting and only said that it was the reason why she had said that her conduct was “intentional” in the first investigatory meeting.  The tribunal was not able to conclude that dyslexia affected the claimant’s understanding, because the claimant herself did not make that case to the respondent.  She had never previously indicated to the respondent in the four and one half years of her employment that she had difficulty in understanding what was required of her and she did not allege that she was not able to understand the training that had been given.  Furthermore, whilst she said that her behaviour was “unintentional” and arose from a desire to clear her pockets because there were no bins at the checkouts, the tribunal is unable to accept that explanation as being one that required a further investigation by the respondent.  The claimant did have to take certain action to acquire the points that did not belong to her.  The tribunal was not able to accept from the claimant's evidence that she did not understand that, as an employee, she was not entitled to acquire Nectar points from customers.

RECEIPTS LEFT BY OTHER CUSTOMERS

20.	As already stated elsewhere in this decision, the tribunal does not consider that the claimant was not given a handbook.  The tribunal considered that the Employee Handbook did explain that misuse of Nectar points was an offence of gross misconduct.

21.	There was also no evidence that the claimant had considered her level of training as being insufficient to explain that the misuse of Nectar cards was an offence of fraud and thus of gross misconduct.  The claimant had four completed years of experience with the respondent and there was no evidence that she had any difficulty in understanding the requirements of her job prior to the events of this case.

22.	Much was made by Mr O’Neill in his argument about whether or not the claimant had been trained in the use of “Brand Match” coupons.  The tribunal has discarded this argument in reaching its decision, as the misconduct of the claimant related to Nectar card points misuse and not to the use of the “Brand Match” system.  Therefore, the issue of training in relation to “Brand Match” is not relevant for the purposes of this case.

23.	A further complaint by Mr O’Neill was that the respondent did not investigate the claimant’s claim that there were no bins at her checkouts into which she could place the coupons.  Essentially, the claimant’s explanation was that she pocketed the coupons to bin them, at a later date.  Given that is the claimant’s evidence, the tribunal found it strange that she then transferred the points onto her card.  Plainly from the evidence that the coupons were to be destroyed, she knew that the Nectar coupons that were not taken by customers had to be destroyed and that they were not available for her personal use.

24.	Having dealt with the three parts of the test in the Burchell case, the tribunal must then move on to consider the issue of the band of reasonable responses test that was stated in the case of Iceland Frozen Foods  v  Jones.  The most relevant parts of the advice given by Browne-Wilkinson J are as follows:-

		“...	(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.”

25.	Was the dismissal of the claimant within the band of reasonable responses?  Before answering this question, the tribunal considers it appropriate to consider the words of Article 130(1) (2) and (4):-

	“(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 (or if more than one, the principal reason) for the dismissal, and

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

	(2)	A reason falls within this paragraph if it:-

		(a)	…

		(b)	relates to the conduct of the employee,

	(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 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 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.”

26.	In this case, the respondent dismissed the claimant for the misuse of its Nectar card scheme which was plainly set out in its “Colleague Handbook” as being fraud.  Fraud, by its very nature, is a type of misconduct that involves the destruction of the mutual trust and confidence bond between an employer and employee.

27.	The tribunal considers that in the retail industry the issue of there being a bond of mutual trust and confidence between employer and employee is of paramount importance.  Mr O’Neill argued for the claimant to be given a second chance.  One example was a suggestion that the claimant be deployed elsewhere in the respondent.  The tribunal is unable to agree that the penalty of dismissal was outside the band of reasonable responses open to the respondent in this case.  There was an element of sympathy for the claimant in the tribunal.  It did seem that the penalty of dismissal was disproportionate.  Despite recent authority suggesting that a tribunal can review the reasonableness of a penalty imposed, in the particular facts of this case the tribunal did not consider that it should substitute its view on the penalty for that of the respondent.

28.	The respondent has a large workforce and it was apparent to the tribunal from the evidence that this respondent categorised the type of misconduct of which the claimant admitted she was guilty as being fraud.  In these particular circumstances, the tribunal is unable to say that an employer faced with an offence of fraud, which is clearly within the category of gross misconduct involving the destruction of the trust and confidence the employer would have in its employee, is acting unreasonably and outside the band of reasonable responses in attaching a penalty of dismissal to this offence.

29.	The tribunal has accepted that an operation which employs in or around 130,000 staff in 750 stores in the United Kingdom is an employer on a large scale with proportionate administrative resources.  However, this does not detract from the situation that where trust and confidence has been broken, the employer is acting within the band of reasonable responses to dismiss an employee for the misconduct of which the claimant was, by her own admission, guilty.

Chairman:

Date and place of hearing:    20 March, 4 April and 20 April 2012, Belfast.

Date decision recorded in register and issued to parties: