THE INDUSTRIAL TRIBUNALS 

CASE REF:    2045/13  

CLAIMANT:	Gerard Quigley

RESPONDENT:	PMD (NI) Ltd

DECISION 

The decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Wimpress

Members:	Mrs C Stewart
	Mr D Atcheson

Appearances:

The claimant was unrepresented and appeared on his own behalf.

The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

SOURCES OF EVIDENCE

1.	The tribunal received a bundle of documents by agreement and heard evidence       from the following witnesses:

The claimant;
Mr Paul McDermott; and
Mr Stephen O’Hara.

THE CLAIM AND THE RESPONSE

2.	The claimant brought a claim of unfair dismissal arising from the termination of his employment.  In his claim form the claimant complained that the same person carried out the investigation and the disciplinary hearing and that he wasn’t given any evidence either in advance of or at the disciplinary hearings.  The claimant claimed that the whole disciplinary process was eroded.  The respondent submitted a detailed response in which it contended that the claimant had been fairly dismissed for gross misconduct as a result of his conduct and performance and in consideration of a current final written warning.  The response stated that an investigation and disciplinary hearing was conducted by Mr McDermott in relation to the claimant being absent without leave on 22 July 2013, leaving the workplace on 2 August 2013 without authority, failing to report damage to a company car, behaviour at a staff function on 6 August 2013 and failure to behave appropriately as manager of the restaurant following his final written warning.  The response also dealt with the claimant's appeal to Mr O'Hara and set out his findings in some detail which included his conclusion that the appeal was not upheld.

3.	Given the sparse content of the claim form the respondent’s solicitor unsurprisingly served a Request for Additional Information on the claimant.  The claimant duly provided further details of his claim which may be summarised as follows - 

	(1)	The respondent did not follow all company procedures.  In particular, the respondent should have issued the claimant with reprimands rather than moving straight to a final written warning on 7 May 2013.  No investigation meeting was carried out before the final written warning was given.  The claimant did not appeal the decision to issue a final written warning because the franchisee had made it clear that if he did not accept the warning his employment would be terminated.

	(2)	There was no investigatory meeting to gather the facts and allow the claimant the opportunity to give an explanation before the disciplinary hearing on 26 August 2013 in contravention of company policy.

	(3)	At the disciplinary hearing no evidence was presented to the claimant when he disputed points made against him.

	(4)	The claimant made a number of points in relation to the letter of dismissal –

(i)	The failure to attend the workplace on 22 July 2013 had already been dealt with by Mr McDermott and no disciplinary action was taken.  Mr McDermott said that he had covered for the claimant by speaking to Stephen Saunders and explained to him that the claimant was changing his days off.

(ii)	The claimant disputed having left the workplace on 2 August 2013 and no evidence was offered against him.

(iii)	In relation to the alleged failure to report damage to the company car the claimant stated that this was untrue as he had reported it straight away to the insurance company.  The claimant drew attention to the respondent’s slow response on two previous occasions when the claimant had reported damage to the car and stated that the car was un-drivable and he had decided on this occasion to proceed with repairs to the car at his own expense.

(iv)	In relation to the staff function at the Gun Club on 6 August 2013 the claimant disputed the allegation that he was in a daze or out of sorts on the basis that if this was true he would not have been allowed into the building or to use guns.

(v)	The claimant queried why he was paid a manager’s bonus in July 2013 for the period January 2013 to June 2013 if as alleged his behaviour had fallen short of what was expected.  The claimant also contended that the respondent’s performance review tool should have been used to address this shortfall.

(5)	Mr McDermott did not have enough experience and training in relation to a disciplinary process of this importance as evidenced by the need for the claimant to explain to him how to close the disciplinary hearing.

(6)	The respondent’s policy stated that an employee dismissed for gross misconduct was not entitled to a notice period or pay in lieu with benefits. 

(7)	The appeal officer, Mr O’Hara was a close friend of Mr McDermott and the claimant objected to this as he did not think that he would receive a fair hearing.

(8)	The dismissal and appeal decisions were not reasonable because the claimant’s personal and mitigating circumstances were not taken into account.

(9)	Mr McDermott was not impartial because he had a pre held opinion about the claimant having described him on numerous occasions as being out of sorts by which Mr McDermott said that he meant non compos mentis.  

THE ISSUES

4.	Whether the claimant was unfairly dismissed by the respondent and if so what compensation should be awarded to him.

THE FACTS

5.	The claimant commenced employment with the respondent on 5 April 1995.  The respondent is a well known fast food retailer which trades as McDonalds Restaurants.  The claimant was promoted several times in the course of his employment with the respondent and ultimately he was promoted to Business Manager in 2012 and in that capacity was paid £1,809.57 per month gross.  He was also supplied with a company car, mobile phone and private health care.  The claimant was based at the respondent’s restaurant at Connswater Link in Belfast.  Mr McDermott is the franchisee of the Connswater outlet.

6.	The bundle contained an Employee Handbook, the title of which suggested that it only applied to hourly paid staff, but in answer to questions posed by the tribunal it transpired that it applied to all staff.  The respondent’s disciplinary procedure is set out at paragraph 3.16 of the Employee Handbook.  Provision is made for the right to be accompanied as follows:

		“At all stages you will have the right to be accompanied by a Company employee of your choice (within reason) or a trade union official during any Disciplinary Meetings (but not Investigation Meetings).”

	As is customary in such handbooks it contained non-exhaustive lists of misconduct and gross misconduct.  One example of misconduct was habitual lateness or absence without authority.  The handbook also addressed performance management.  It is clear from the terms of the handbook that the primary function of performance management was to link pay to performance although it was also expressly stated that unacceptable performance might lead to dismissal.

7.	The claimant was the subject of disciplinary proceedings in April/May 2013 which arose from an alleged lack of leadership during an office move (21-25 April 2013), for arriving late at work on 29 April 2013 during the week of the Blended Ice Launch without contacting the respondent and being absent without leave on 30 April 2013.

8.	On Wednesday, 1 May 2013, Mr McDermott met with claimant to discuss these matters.  Unusually the meeting took place during a long walk on the beach at Seapark, Holywood.  Mr McDermott made investigatory notes in respect of the meeting which were not verbatim but covered the main points.  There was a dispute between the parties as to what was said.  The claimant contended that Mr McDermott gave him a choice between being dismissed and accepting a final written warning.  According to the claimant Mr McDermott told him that he was not the sort of person who would walk someone to the gallows and not pull the rope.  Mr McDermott could not recall saying anything of this nature.  Mr McDermott’s note recorded that the claimant agreed that his recent behaviour was not what would be expected from him and that Mr McDermott told the claimant that there would be disciplinary proceedings.  The claimant replied that he would be totally willing to accept any discipline that Mr McDermott would give him and wanted to know if he would get one more chance.  The note recorded that Mr McDermott did not comment one way or the other in response.

9.	Mr McDermott wrote to the claimant on 3 May 2013 and invited him to attend a disciplinary hearing on 7 May 2013 at which he would be given an opportunity to explain his behaviour.  No details of the alleged behaviour were provided.  The claimant was also advised of his right to be accompanied by “a witness”.  The invite letter was plainly inadequate and had the hearing on 7 May 2013 resulted in the claimant’s dismissal it would have been open to challenge on the basis that it did not comply with the requirements of Step 1 of the minimum statutory procedures.

10.	The claimant attended the disciplinary hearing on 7 May 2013.  Mr McDermott outlined the matters of concern as set out at paragraph 6 above, namely the lack of leadership displayed as a Business Manager, mainly in the week of the office move (21 April to 25 April) and the week of the Blended Ice launch (29 April), for which the claimant was solely responsible for the training of staff.  Mr McDermott went on to provide more detail in relation to the events of 29 and 30 April.  He related that the claimant had texted him on Sunday, 28 April and asked if he could take a call.  Mr McDermott replied that he could not as his mother was ill.  The claimant texted back and asked if he could start at 12.00 on Monday as there was no Blended Ice training as the machine was not being commissioned until Tuesday and that he totally understood if this was not possible as it would mean the weekly work and late night sales not being completed until 12.30.  The next morning Mr McDermott noticed that he had received an email from the claimant sent at 1.46 am telling him to disregard his texts from last night.  Mr McDermott therefore expected to see the claimant in work at 10.00 but he did not show up.  There were a lot of problems that needed to be sorted out in the store that morning which needed to be handled by the Business Manager to handle plus the store was receiving an important planned visit from Andrew Jones (Field Consultant) and Stuart Cox (Head of Marketing).  The Shift Manager, Ian Hunter, got hold of the claimant on the phone at around 11.00 am and the claimant told him that he was on his way in.  The claimant arrived at 11.50 am ‘out of sorts’ and remained until 7.00 pm although he should have stayed until 9.00 pm.  The claimant did not attend work on 30 April when he was due to train managers for the Blended Ice.  This put Mr McDermott in a spot when Mr Jones rang to see if the Blended Ice was running and training was in progress.  The claimant subsequently arrived at 4.30 pm and in Mr McDermott’s opinion he was ‘out of sorts again’.  Mr McDermott asked the claimant not to go into the store and suggested that he go home and come to work the next day as normal and discuss it then.

11.	Mr McDermott then asked the claimant for an explanation and any comments that he might have.  The claimant said that he was ‘totally willing to accept anything’ and that he had let his personal problems effect his working life and this had resulted in his inability to perform his role as Business Manager and he had no excuse for his behaviour.  Mr McDermott informed the claimant that he had left him with no other alternative but to issue him with a Final Written Warning for Misconduct.

12.	The claimant was issued with a Final Written Warning for Misconduct in writing on the same day.  The written document informed that the warning would be placed permanently on his personnel file but would be disregarded for disciplinary purposes after 12 months provided that the improvements required were achieved and maintained throughout that time.  The document went on to state that if there were any further instances of misconduct the claimant’s employment would be terminated.  The claimant was afforded the right of appeal to Mr Jones within 14 days.  The claimant did not appeal the Final Written Warning.

13.	The claimant was subsequently the subject of further allegations and on 22 August 2013 Mr McDermott wrote to the claimant and suspended him on full pay.  Mr McDermott invited the claimant to attend a disciplinary hearing 26 August 2013.  The letter set out the matters of concern as follows:-

“	Continued unauthorised absences from the workplace.

	Excessive and persistent lateness.

	Failure to notify the employer of an accident and damage to Company vehicle.

	Unacceptable attitude to work and performance in your role as manager.

	Your conduct and demeanour at the workplace function on 6th August 2013.

	Your conduct on 7th August 2013 during a telephone call when you were aggressive and shouted at Paul McDermott.”

The letter continued as follows:-

“You currently have a Final Written Warning on your file in respect of similar conduct, therefore these matters, if proven, and in the absence of a satisfactory explanation may result in the termination of your employment as advised in the Final Written Warning letter dated 7th May 2013.”

	Mr McDermott enclosed a copy of the respondent’s disciplinary rules and procedures.  He also advised the claimant of his right to be accompanied by a fellow employee or a Trade Union representative.

14.	A disciplinary hearing took place on 29 August 2013 which was chaired by Mr McDermott.  The claimant did not avail of his right to be accompanied by a fellow employee or a Trade Union representative.  Mr McDermott gave the claimant an opportunity to address all of the matters of concern and to provide an explanation of his alleged conduct.  In relation to non-attendance and lateness the record of the hearing shows that the claimant told Mr McDermott that he did not come into work on 22 July 2013 because he fell back to sleep.  The claimant also said that he would have to hold his hands up and that he was physically drained because he had been working loads of hours and not sleeping properly.  With regard to his late attendance on 23 July 2013 the claimant said that it was something to do with his sister and that he couldn’t remember the exact reason. The claimant also gave evidence that his mother had suffered a heart attack and was seriously ill at the time of the hearing and this had an adverse impact on his ability to present his case.  The tribunal can well appreciate this but the claimant should have sought an adjournment in these circumstances or at the very least he should have brought these personal difficulties to Mr McDermott’s attention.  The disciplinary hearing continued thereafter with claimant being given a full and fair opportunity to deal with each of the matters.  The claimant either denied the allegations or provided explanations as appropriate.

15.	At the conclusion of the disciplinary hearing Mr McDermott, prompted by the claimant, closed the hearing and re-suspended the claimant.  Mr McDermott issued his written decision later the same day.  In the letter Mr McDermott addressed each of the matters of concern and summarised the claimant’s explanation as follows:-

“1.	You failed to attend the workplace on the following date, Monday 22nd July 2013 at 10am.  You contacted Stephen Saunders at 11am to say you were on your way over, you did not turn up.  Your explanation for this was that you fell asleep.  This is not a satisfactory explanation for your absence.

2.	You left the workplace on the following occasion Friday 2nd August 2013 without authority and did not explain where you were at this time.  Your response was “Really, I knew nothing about this."  This is not a satisfactory explanation in relation to this.

3.	You damaged the Company Car and did not advise me of this nor report it.  Your response was that you were waiting on a report from a mechanic and when you received this you were on holiday.  This is not a satisfactory explanation for not reporting the incident as you had four days still to work before your holiday.  This is a company vehicle and it is expected that you will report any or all damage to this.

4.	Your behaviour on Tuesday 6th August 2013 when at a Staff Function, you failed to pick up other Managers as arranged, you arrived late and you looked like you were in a daze.  You did not dispute this and your response to this is “no-one asked me if I was OK” is unsatisfactory and does not provide any explanation for your conduct.

5.	Your behaviour as Manager of the restaurant has fallen short of that expected and you have been aware of this since the last disciplinary hearing in May 2013, the result of which was a final written warning.”

	Mr McDermott concluded that given that the claimant had a current Final Written Warning due to similar conduct he had no alternative but to dismiss him for gross misconduct.  Notwithstanding the finding of gross misconduct the claimant was given three months pay in lieu of notice.  Mr McDermott also advised the claimant of his right of appeal.  

16.	The claimant availed of his right of appeal by letter dated 6 September 2013 which contained detailed comments on Mr McDermott’s findings.

17.	On 11 September 2013 Mr O’Hara, the franchisee of McDonald’s Newry, invited the claimant to attend an appeal hearing on 17 September 2013 at the McDonald’s outlet in Dundonald.  Mr O’Hara informed the claimant of his right to be accompanied.  All necessary information was provided to the claimant in advance of the appeal hearing including the notes of the disciplinary hearing.

18.	The appeal hearing took place as arranged on 17 September 2013.  The claimant was accompanied by Mr Ray Milligan.  The hearing lasted over three hours during which the claimant and his companion dealt with the matter very fully.  Mr O’Hara also probed the evidence carefully.  At the conclusion of the hearing Mr O’Hara indicated that he would give his decision at a later date.

19.	By letter dated 3 October 2013, Mr O’Hara gave his decision on the appeal.  Mr O’Hara stated that he had decided not to uphold the appeal and set out his reasons on a point by point basis which accorded with headings in the letter of dismissal.  In relation to each point Mr O’Hara summarised the claimant’s arguments insofar as necessary and set out his conclusion.

(i)	In relation to point 1 Mr O’Hara noted that the claimant did not dispute that he failed to turn up for work on 22 July 2013 without notification but explained that this was because he had been working excessive hours and not sleeping properly.  Mr O’Hara could find no evidence that the claimant was working excessive hours or that Connswater was short of experienced staff support.  Mr O’Hara commented that a ‘no show’ was unacceptable for a crew member and unthinkable for a Business Manager.  Mr O’Hara also noted that the circumstances of this ‘no show’ were very similar to the failure to attend work on 29 April 2013.  Mr O’Hara found no evidence that the ‘no show’ was as a result of work pressures and commented that as it occurred while the claimant was on a final written warning for the same thing he was not sure that he had left his employer with any option.

(ii)	Mr O’Hara made no finding in relation to point 2 as he had no evidence to confirm whether the claimant was or was not in the restaurant.

(iii)	Mr O’Hara noted that the claimant’s explanation for not reporting the damage to the company car to Mr McDermott was that he wanted to find out the cost of repairs first and that Mr McDermott had been slow to react when the car was damaged on two previous occasions.  Mr O’Hara could not accept this explanation as the car was un-driveable and off the road and Mr McDermott should have been informed at the earliest opportunity.  Mr O’Hara did not accept the claimant’s apparent suggestion that he considered that the car belonged to him as he felt that Mr McDermott had given it to him instead of a pay rise.

(iv)	Mr O’Hara considered that the notes of the appeal meeting supported the claimant’s argument that his comment - “no-one asked me if I was OK” was taken out of context.  Mr O’Hara was also unable to make a judgement as to whether the claimant was ‘in a daze’ at the function.  However, Mr O’Hara noted that the claimant did not dispute that he had failed to collect the other managers as arranged and had arrived late at the staff function.  Mr O’Hara considered that this was a ‘no show’ and arguably worse than a ‘no show’ at work.  He considered this to be completely unacceptable behaviour for a Business Manager who would be expected to use such a function as a team building event and to show gratitude to staff.

(v)	Mr O’Hara treated this as a summary of the previous points.  Mr O’Hara was unable to accept the claimant’s contention that he should not be adjudged to be under performing given that the restaurant was performing well having broken sales records in May and July 2013.  Mr O’Hara focussed on the claimant’s behaviour which he considered had fallen short of what was expected and he had no doubt that it had fallen short as the claimant had recorded two ‘no shows’ and had failed to report serious damage to a company car within three months of the final written warning.  In Mr O’Hara’s view this was not indicative of someone who had taken a warning seriously.  If anything the claimant’s behaviour had become worse and it was understandable that his employer had lost confidence in his ability to run the restaurant.

20.	Mr O’Hara also addressed queries raised by the claimant in relation to his final written warning.  He pointed out that when this was administered in May 2013 the claimant did not dispute that his behaviour fell short of that required and accepted that he should be disciplined.  The claimant did not appeal against the final written warning and Mr O’Hara considered that in these circumstances it was inappropriate to consider the validity of that process.  Mr O’Hara also did not accept the claimant’s contention that there was no investigation prior to the decision to discipline him.  The investigation was conducted by Mr McDermott who was informed as to what occurred by staff members.  It was accepted that no investigation meeting was held with the claimant.  There were no staff witness statements but Mr O’Hara did not consider this necessary as the claimant did not dispute the nature of his conduct.  The claimant had also made an allegation of discrimination on the grounds of religion on the basis that Mr McDermott referred to the claimant as ‘G’ rather than Gerard.  Mr O’Hara did not accept this as he was informed that the claimant was often referred to in this way by staff and friends.  Furthermore, the claimant had not raised a grievance about this or raised it verbally.  Nor had he raised it at any of the previous disciplinary proceedings.  Mr O’Hara also rejected a complaint about the timing of the notification of the disciplinary hearing on 29 August 2013.

21.	Mr O’Hara concluded that the claimant’s conduct had been completely unacceptable and that he could not see how his employer was left with any alternative but to terminate his contract of employment.

22.	In his evidence to the tribunal Mr McDermott stressed that he was well disposed towards the claimant and had lent the claimant money to pay off his gambling debts.  Mr McDermott was aware of some of the claimant’s problems and had suggested that he avail of the private health insurance that was part of his remuneration package.   

23.	One of the main pillars of the claimant’s case was that his restaurant had performed very well and achieved record sales during the period in which his behaviour came under scrutiny.  Mr McDermott’s evidential answer to this point was that seventy stores across Northern Ireland achieved record sales and other managers at the claimant’s outlet performed very well.   Mr McDermott also attributed the increase in sales at the Connswater store to a diminution of civil unrest in the area.

THE LAW

Unfair Dismissal

Substantive Unfairness

24.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

“130. -	(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 as to justify the dismissal of an employee holding the position which the employee held.

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

		(b)	relates to the conduct of the employee,

	(3)	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.”

25.	In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited  v  Jones [1982] IRLR 439 (reaffirmed by the Court of Appeal in England in the cases of Post Office  v  Foley/HSBC Bank  v  Madden [2000] IRLR 827) which includes (inter alia) that 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 and that 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.  In this regard the tribunal is also assisted by the guidance given by the Court of Appeal in Dobbin  v  Citybus Ltd [2008] NICA 42 as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47.

26.	In Dobbin  v  Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal.  The judgment of Higgins LJ reads as follows:-

“[48]…	The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

[49]	The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases – Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[50]	In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance – 

	‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:

	(1) 	the starting point should always be the words of section 57(3) themselves;

	(2) 	in applying the section an 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.’

[51]  	To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -  

	‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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.  And 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.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more 
old-fashioned term, such as to put the matter “beyond reasonable doubt.”  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”

27.	An issue arose in these proceedings in relation to the correct approach to an 
un-appealed final written warning.  The relevant case law in this area is contained in the following decisions – Stein  v  Associated Dairies Ltd [1982] IRLR 447, Tower Hamlets Health Authority  v  Anthony [1989] IRLR 394, Davies  v  Sandwell Metropolitan College [2011] UK EAT 0416 10 1301 and Wincanton Group Plc  v  LM Stone & C Gregory UKEAT/0011/12.  Two passages in particular are of importance.  Firstly, the test as expressed by Wilkie J in the Davies case -

"28. 	[Counsel for the Appellant] points out that the focus of the Employment Tribunal has to be on the final decision to dismiss; that those who are operating and subject to internal disciplinary procedures are entitled to conclude that those procedures will have some significant degree of finality, particularly if a decision is taken, an appeal offered, but not taken up.  He says that it would be contrary to policy and inconsistent with the decision in [Stein] for the validity of a final warning to be subject to the same test, and therefore the same potential level of scrutiny, as the decision to dismiss.  In our judgment, he is correct in his concern.  He is also correct in the way he reads the decisions in Stein and [Anthony].

29. 	The test required by Stein to be satisfied before it will be appropriate for an ET to look behind a final warning is deliberately couched in more exacting terms than the test for unfairness in respect of a dismissal.  Provided the final warning has been issued in good faith and there are prima facie grounds for it, or, to put it another way, provided the warning has not been issued for an oblique motive or has not been manifestly inappropriately issued, the employer and the employment tribunal is entitled to regard the final warning as valid for the purposes of any dismissal arising from subsequent misconduct, provided that the subsequent misconduct is such that when taken together with the final warning a dismissal, or the decision to dismiss, is a reasonable one."

	Secondly, the summary of the law given by Langstaff J in the Wincanton case in relation to the English equivalent of Article 130 (3) of the Employment Rights (Northern Ireland) Order 1996  - 

“37. 	We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning.  A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98 (4), applies.  Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer’s act in treating conduct as a reason for the dismissal.  If a Tribunal is not satisfied that the first warning was issued for an oblique motive was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid.  If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently.  Where the earlier warning is valid, then:-

(1) 	The Tribunal should take into account the fact of that warning

(2) 	A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning.  That will usually be an internal appeal.  This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning.  An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it seems appropriate.

(3)	It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category a warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.

(4) 	It is not to go behind a warning to take into account the factual circumstances giving rise to the warning.  There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered.  Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way.  There may be some particular feature related to the conduct of the individual that may contextualise the earlier warning.  An employer, and therefore Tribunal should be alert to give proper value to all those matters.

(5)	Nor is it wrong for a Tribunal to take account of the employers’ treatment of similar matters relating to others in the employers’ employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of this sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.

(6)	A Tribunal must always remember that it is the employer’s act that is to be considered in the light of section 98 (4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.”

Procedural Fairness

28.	When an employer is considering dismissing an employee it must follow the statutory dismissal procedure.  This is the minimum procedure which must be followed in every case to which it applies.  In the present case the standard procedure applies which is as follows:-

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

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

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

Step 2:	meeting

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

	(2)	The meeting must not take place unless – 

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

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

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

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

Step 3:	appeal

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

	(2)	If the employee informs the employer of his 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 his final decision.”

SUBMISSIONS

29.	Claimant’s Submissions

	(i)	The claimant complained that he was informed that the meeting on the beach was just going to be a chat.  He was not told that it was going to be an investigation meeting to which he would have had the right to be accompanied and he only found out its status afterwards. 

	(ii)	The claimant only accepted a final written warning because he was threatened with the sack.  According to the claimant company procedure meant that being late on two occasions only warranted two reprimands.  Even if the lateness was classified as a ‘no show’ it should still have only resulted in a reprimand.  The claimant also asserted that it was company procedure that decisions as to disciplinary action should not be made during investigatory meetings.

	(iii)	In relation to the disciplinary hearing Mr McDermott referred to the claimant being ‘out of sorts’ on numerous occasions.  When the claimant asked Mr McDermott to define this he was unable to do so.

	(iv)	The claimant queried why Mr McDermott allowed him to continue to run the restaurant if he genuinely thought that the claimant was on legal or illegal substances and why he did not report him to the relevant authorities.  Thus Mr McDermott chose to ignore gross misconduct.  The claimant denied being under the influence of anything and submitted that the explanation lay in the fact that the business was approaching the four busiest months of the year and Mr McDermott needed the claimant who then broke three sales records and nearly a fourth.

	(v)	The claimant contended that the fact that Mr McDermott was involved in both the investigation and the disciplinary process was against company policy and constituted procedural unfairness.  The claimant submitted that separation was important as it would avoid any accusation of the procedure being tainted as the person involved could hold a grudge.  The claimant submitted that there was no reason for Mr McDermott to do both as the respondent was a large company.

	(vi)	The claimant sought to raise a consistency issue for the first time in his submissions based on 36 other persons not being disciplined.

	(vii)	In relation to the company car the claimant pointed out that Mr McDermott took no action when the claimant reported scratches in May 2013.  This reinforced the claimant’s view that at this time Mr McDermott needed him to run the restaurant.  The claimant submitted that this was inconsistent and that when Mr McDermott deemed it suitable he used this sort of incident to dismiss the claimant.  The claimant complained that he was being dismissed for failure to report damage to a company vehicle regardless of how serious the damage was.

	(viii)	The claimant submitted that the respondent did not undertake a thorough investigation.  Witnesses and statements were not produced.  Restaurant staff could have produced statements about him being ‘in a daze’.  The claimant also pointed out that he wasn’t in the restaurant at that time.  Similarly although managers were expressing concern about his demeanour at the event in the Gun Club, there were no witness statements about this or in relation to the allegation that he was not in the restaurant on 2 August 2013.  The claimant also suggested that Mr Ian Hunter, the Shift Manager could have been asked for a statement in relation to the final written warning.  Mr McDermott had said that an issue arose that only the Business Manager could deal with but when the claimant came in to work he asked Mr Hunter what had been going on and was told that they just needed to get some buns from the Dundonald Restaurant.

	(ix)	The claimant contended that there were very strong mitigating circumstances which caused the claimant to be late for work namely that he was coping with grief due to the death of his father at the same time of the previous year and that his mother’s health was suffering.  In addition, the claimant’s health was starting to suffer due to the stress and worry about his mother’s health.  The claimant brought this to Mr McDermott’s attention who dismissed it by saying that his mother was sick too and that the claimant had family but he had no-one and that a lot of people cared for the claimant.

	(x)	The claimant also drew attention to the fact that at the disciplinary meeting on 29 August 2013 Mr McDermott said that the second assistant manager Stephen Saunders had told him that the claimant looked unwell.  Mr McDermott then used the claimant’s health issues as a weapon against him as the claimant had been telling Mr McDermott this himself for the last couple of months.

	(xi)	According to company procedures the person conducting the disciplinary procedure should be competent and fully trained.  Mr McDermott had not completed a training course since he became franchisee.  Mr McDermott was not challenged about this when he gave his evidence.  The claimant also submitted that Mr O’Hara did not have sufficient training.

	(xii)	In respect of the appeal process, the claimant submitted that Mr McDermott should have chosen a different franchisee or used Andrew Jones.  The claimant disputed Mr McDermott’s evidence that he was friendly with all franchisees.  Again, none of this was put to Mr McDermott.

	(xiii)	The claimant submitted that Mr O’Hara did not gather facts for the appeal but instead relied on assumptions.  Then when the facts transpired to be in the claimant’s favour Mr O’Hara made no findings.

	(xiv)	The claimant also disputed Mr McDermott’s depiction of himself as the claimant’s guardian angel as the claimant depicted  Mr McDermott’s evidence in this regard.

	(xv)	The claimant rejected the suggestion that other restaurants were doing as well as his which did well for three months not just one month.

	(xvi)	The claimant contended that he should have received a reprimand in respect of missing a day’s work.

	(xvii)	In relation to being late for work on 23 July 2013 the claimant disputed the suggestion that he offered no explanation and contended that he said that he was running behind due to doing an errand for his sister.  We note in passing that the record of the meeting was not challenged and it recorded the claimant as saying that he could not remember the exact reason for being late.

	(xviii)	The claimant also criticised Mr McDermott for the first time in submissions for not having sought advice or support given that the respondent was a big company.

30.	In the course of the tribunal hearing the claimant also sought to criticise the respondent for not seeking to address the matters of concern via the respondent’s performance review system.  In this regard the claimant drew attention to training material that he received in the course of his employment including the staff handbook.  Mr McDermott’s position was that he spoke with the claimant on a regular basis and provided him with support and encouragement.

31.	Respondent’s Submissions 

	(i)	Mr Phillips submitted that the decision to dismiss the claimant was within the range of reasonable responses.  Furthermore, it was not a dismissal which required to be considered in isolation from other disciplinary matters as it followed a final written warning.  Mr Phillips drew attention to paragraph 1538 of the online edition of Harvey which dealt with the impact of such a warning and the case of Stein  v  Associated Dairies in which it was held that the test that had to be satisfied before it was appropriate to look behind such a warning.  Mr Phillips submitted that provided the warning was given in good faith and was not for some oblique reason the tribunal was entitled to regard it as valid and that when taken together with the reasons for dismissal that decision was reasonable.  There was a high onus on the claimant to convince the tribunal to look behind the warning and not treat it at face value.  If there is no appeal of a final written warning it is more difficult to say that it should not have been received in the first place.  Mr Phillips also submitted that the absence of any appeal is important and workers are advised to challenge such a warning as it should not be assumed that such a warning can be successfully challenged at a later stage.

	(ii)	Mr Phillips pointed out that the respondent did not accept that the walk along the beach discussion amounted to an investigatory meeting but even if it did this accorded with the respondent’s handbook which provided that there was no right to be accompanied at investigatory meetings and this is only permitted at disciplinary meetings.

	(iii)	In relation to the claimant’s contention that his conduct only warranted a reprimand Mr Phillips submitted that this approach sought to ask the tribunal to substitute its view for the employer’s and this was impermissible.

	(iv)	Mr Phillips next addressed the claimant’s suggestion that the decision to give him a Final Written Warning was made in advance of the disciplinary hearing and submitted that on the claimant’s own evidence he was offered the opportunity to make his own case.  The claimant also declined the opportunity to have his own witness and said that he was totally happy to accept anything saying that he had let personal matters affect his working life and he had no excuses for his behaviour.  The claimant did not appeal the final written warning.  It was also of note that the claimant did bring a representative to his final appeal meeting which he felt was his last chance.  Mr McDermott on repeated occasions lent the claimant money, directed him towards health insurance and behaved benevolently towards him.  The tribunal is asked to believe that the same person threatened him with the sack and forced him to accept a final written warning.  Mr Phillips submitted that it didn’t stack up.  Mr Phillips pointed out that the claimant did not lack the confidence or means to express his grievances and drew attention to the claimant’s behaviour at the later disciplinary meeting where he demonstrated sufficient confidence to direct Mr McDermott as to how to close the meeting.  Mr Phillips submitted that on the balance of probabilities the tribunal should accept the respondent’s account and not the claimant’s.

	(v)	In relation to the claimant’s allegation that Mr McDermott said that he didn’t know whether the claimant was on legal or illegal substances, Mr Phillips pointed out that the claimant was not dismissed for that.  Furthermore, the comment that the claimant was ‘in a daze’ was not upheld on appeal and is therefore of no relevance.

	(vi)	Mr Phillips addressed the claimant’s reliance on the fact that there were improved sales after his Final Written Warning by drawing attention to the clear, plausible and coherent explanation for this provided by the respondent.  Seventy stores across Northern Ireland achieved record sales and other Managers at the claimant’s outlet performed very well.  The respondent accepted that when the claimant was good he was very good but there were days when he didn’t turn up for work.  Therefore the fact that the branch was operating very well is not relevant.  The claimant was not dismissed for a failure to perform which resulted in reduced profits.

	(vii)	In relation to procedural unfairness, Mr Phillips pointed out that three matters were upheld – (1) the failure to pick up junior managers, (2) the failure to report damage to a company car, and (3) non-attendance on 22 July 2013.  None of these matters were relevant to sales figures or the adoption of unfair procedures.  The claimant complained that the same person conducted the investigatory and disciplinary stages but the claimant did not dispute any of these matters.  Therefore complaints about sales figures and the identity of the disciplinary decision maker are not relevant.

	(viii)	Mr Phillips rejected the alleged inconsistency by the respondent in relation to the failure to report damage to the company car.  The fact that the claimant reported scratch marks to his car in May 2013 does not mean that the respondent should not bring disciplinary proceedings when he crashed the car with the result that it was un-drivable and had to be towed away.  The explanation given by the claimant that he was waiting for a report on the damage is not a satisfactory.  The respondent had to make contact with the leasing company on two previous occasions and the claimant by his inaction could thereby have put the respondent in a difficult position with the leasing company.

	(ix)	Mr Phillips criticised the claimant’s stance that the disciplinary hearing and appeal were everyone’s fault but his own.  The final written warning meant that the claimant was at risk of being dismissed if there was a further incident.  There were further incidents and based on these the respondent was entitled to dismiss the claimant.  On appeal the lack of a corroborating statement led Mr O’Hara to conclude that he could not make a finding about various matters.  Nevertheless Mr O’Hara felt that he had no alternative but to terminate the claimant’s employment.  Mr Phillips submitted that this decision was not surprising given that the behaviour which resulted in a final written warning and was within the band of reasonable responses.

	(x)	In relation to mitigating circumstances Mr Phillips pointed out that the claimant sought to rely on particular mitigating circumstances for the first time at the tribunal hearing.  At the disciplinary hearing the claimant was asked about his failure to attend the workplace and responded that he had to hold his hands up and that he was not sleeping properly.  The claimant also said that he could not remember the exact reason and that he trying to improve and do his job and trying to distance himself from work colleagues.  The claimant provided a different explanation at the tribunal hearing namely his mother’s ill health and the anniversary of his father’s death.  In contrast the claimant blamed his employer at the disciplinary hearing on the basis that he was working excessive shifts but this was not substantiated by him either before Mr McDermott or on appeal.  In addition, the claimant also had a day off in between.  The claimant admitted the three things that he was dismissed for and Mr Phillips submitted that this was a very clear cut case where the employer’s decision to dismiss was within the reasonable band of responses.

	(xi)	In relation to mitigation Mr Phillips submitted that a claimant must take such steps as are reasonable to replace the income lost as a result of his dismissal and cast doubt on whether the claimant had done so.

	(xii)	Finally, Mr Phillips submitted that if the tribunal came to the conclusion that the dismissal was procedurally unfair it should reduce any award by up to 100% on the basis that a fair procedure would not have made any difference to the outcome. 

CONCLUSIONS

32. 	(1)	The tribunal’s task is to decide the case on the basis of the case put forward by the claimant.  The claimant’s case is contained in his claim form and in his reply to the respondent’s Request for Additional Information.  During the course of the hearing the claimant sought to raise additional points which could have been made during the disciplinary and appeal process but were not.  The role of the tribunal is to determine whether his employer’s actions were reasonable and this must be addressed in the context of what was put forward by the employee during the disciplinary and appeal process.

	(2)	An important aspect of the claimant’s case was that the final written warning was forced upon him.  We are satisfied that Mr McDermott made clear to the claimant in terms that he would face dismissal if he did not accept the final written warning but we are not persuaded that Mr McDermott used the rather colourful analogy that the claimant attributed to him.  However, there is no basis to believe that the warning was "manifestly inappropriate" or given for an "oblique motive”.  On the contrary the claimant’s behaviour clearly exposed him to the risk of disciplinary proceedings and we do not regard a final written warning as being outside the range of options open to a reasonable employer.  In the event the claimant accepted a final written warning and given the misconduct that led up to the warning he was probably wise to do so.  Nor did the claimant seek to appeal the final written warning.  In these circumstances, we consider that the correct approach in this case is to proceed on the basis that the claimant was properly given a final written warning and in line with the guidance given in Wincanton, assess the reasonableness or otherwise of the dismissal taking into account the factual circumstances which gave rise to the warning.

	(3)	In his claim form the claimant stated that he was not given any evidence either in advance of or at the disciplinary hearings.  In answer to our questions it became clear that the main focus of his complaint was the information contained in Mr McDermott’s letter of 22 August 2013 and in particular the absence of a statement by Mr Patrick Smyth.  We are satisfied however that the invite letter contained all necessary information as to the nature of the respondent’s concerns.  The author was Mr McDermott who was well placed as to the nature of the respondent’s concerns.  No statement was taken from Mr Smyth and it does not seem to us that it was necessary to do so.

	(4)	The claimant did not dispute the disciplinary charges laid against him but rather sought to explain why the events occurred which therefore goes to mitigation.  On appeal Mr O’Hara carefully considered the evidence and made no findings in relation to two aspects of the charges.  Mr O’Hara was criticised by the claimant for dealing with the matter in this way but it seems to us that this evidence demonstrates that Mr O’Hara took his appeal role seriously and did not merely rubber stamp Mr McDermott’s conclusions.  The fact that part of the case against the claimant fell away was potentially to his benefit even though the overall decision was to uphold the dismissal.  We entirely accept the respondent’s evidence that there is not necessarily a link between the performance of a manager and the performance of the restaurant as a whole.

	(5)	Mr O’Hara’s decision to dismiss the claimant was based on the claimant being absent from the workplace on 22 July 2013, his failure to report damage to a company car, his failure to collect the other managers and take them to a staff function as well as arriving late at the same staff function where he failed to perform the duties expected of a Business Manager taken together with the extant Final Written Warning.  We are satisfied that there was ample material to justify the decision to dismiss the claimant.

	(6)	The claimant contended that the respondent did not follow all company procedures and in particular the respondent should have issued the claimant with reprimands rather than moving straight to a final written warning on 7 May 2013.  The final written warning was given after a disciplinary hearing and whilst a formal investigatory meeting might have been beneficial it is not a requirement.  For the reasons given above we are not prepared to go behind the final written warning but it does seem to us, based on the evidence that we have heard, that it was entirely justified and we are not persuaded that the claimant’s actions warranted no more than a reprimand.  In the circumstances of this case we do not regard the absence of an investigatory meeting before the disciplinary hearing on 26 August 2013 as being either in contravention of company policy or unfair to the claimant.

	(7)	We do not accept the suggestion that the disciplinary hearing was flawed because no evidence was presented to the claimant when he disputed points made against him.  Ultimately this accrued to the claimant’s benefit as certain allegations were therefore unsubstantiated and therefore not taken into account by Mr O’Hara on appeal.

	(8)	In relation to the letter of dismissal the fact that Mr McDermott had covered for the claimant by speaking to Mr Saunders on 22 July 2013 thus mitigating the impact of the non-attendance cannot preclude the respondent from taking appropriate disciplinary action if otherwise warranted by the alleged misconduct.

	(9)	As Mr O’Hara did not make any adverse finding against the claimant on appeal in relation to leaving the workplace on 2 August 2013 this renders this criticism of the dismissal letter academic.

	(10)	In relation to the alleged failure to report damage to the company car the fact that the claimant reported it straight away to the insurance company is beside the point as is his criticism of the respondent’s slow response to reports of damage on two previous occasions.  It was not a matter of dispute that the car was seriously damaged and it is difficult to understand why the claimant did not report the damage.

	(11)	There was no adverse finding by Mr O’Hara on appeal in relation to the suggestion that claimant was ‘in a daze’ or ‘out of sorts’ at the staff function on 6 August 2013.  Accordingly, the claimant’s contention that if these allegations were true he would not have been allowed into the building or to use guns does not sound on the fairness or otherwise of the dismissal.

	(12)	The respondent’s evidence was that the claimant was entitled to a manager’s bonus in July 2013 based on the restaurant’s performance for the period from January 2013 to June 2013.  The fact that the respondent had concerns about the claimant’s behaviour during this period is not necessarily inconsistent with his entitlement to a bonus.

	(13)	We do not consider that the respondent was obliged to use its performance review tool in order to address concerns about the claimant’s behaviour as opposed to pursuing the disciplinary route.

	(14)	Mr McDermott’s apparent failure to close the disciplinary hearing properly without the assistance of the claimant is not enough on its own to impugn Mr McDermott’s conduct of the disciplinary hearing as a whole or to support the contention that he did not have enough experience and training in relation to disciplinary processes.

	(15)	The fact that the respondent’s policy stated that an employee dismissed for gross misconduct was not entitled to a notice period or pay in lieu with benefits does not assist the claimant’s case.

	(16)	We are not persuaded on the evidence that Mr O’Hara was an unsuitable appeals officer due to his alleged friendship with Mr McDermott any more so than any other franchisee in Northern Ireland.  We are satisfied that Mr O’Hara conducted the appeal with scrupulous fairness.

	(17)	In order for personal and mitigating circumstances to be taken into account it is essential that these are brought to the attention of the decision makers at the relevant time.  Neither Mr McDermott nor Mr O’Hara can be fairly criticised for not taking account of mitigating features that they were not aware of.  It is far too late for example to raise mitigating circumstances for the first time at the tribunal hearing.

	(18)	We do not accept the suggestion that Mr McDermott was not impartial because he had a pre held opinion about the claimant having described him on numerous occasions as being out of sorts by which he meant that the claimant was non compos mentis.  Regardless of whether Mr McDermott expressed these views we do not regard these as impinging on his impartiality.

	(19)	Having regard to these conclusions we are satisfied that the respondent held a genuine belief in the guilt of the claimant which was based on reasonable grounds having carried out a reasonable investigation.  The decision to dismiss the claimant in circumstances where he had previously received a final written warning for similar misconduct falls well within the band of reasonable responses.  We have not detected any procedural failings on the part of the respondent and we are satisfied that the minimum three step statutory dismissal procedure was followed to the letter.  The claimant’s claim of unfair dismissal is therefore dismissed.

Employment Judge:       

Date and place of hearing:     11, 24 February 2014 and 20-21 March 2014, Belfast.

Date decision recorded in register and issued to parties: