THE INDUSTRIAL TRIBUNALS

CASE REF:	1525/15

CLAIMANT:			Mark O’Hare

RESPONDENT:		Hastings Hotels Group Ltd

DECISION 
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to unpaid holiday pay.  The claimant is awarded the following sums:
(1) 	Holiday pay in the sum of £863.08.
(2) 	Compensation for unfair dismissal in the sum of £14,043.36.

Constitution of Tribunal:		
Employment Judge:		Employment Judge Murray	

Members:				Mrs E Gilmartin
					Mr D Walls

Appearances:
The claimant was represented by Mr O Friel, Barrister-at-Law, instructed by Paul Doran Solicitor.
The respondent was represented by Mr R Cushley, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors.

THE CLAIM

1.	The claimant claimed unfair dismissal and failure to pay holiday pay.  The respondent claimed that the dismissal was fair as it was for gross misconduct.

2.  	On the first day of hearing the respondent confirmed that the sum of £863.08 was due and owing for holiday pay relating to four weeks’ holidays.  This figure was also agreed by the claimant’s side.

THE ISSUES

3.	The issues for the tribunal were as follows:

(1)	Did the respondent, in the form of its managers, believe that the claimant was guilty of the misconduct alleged; 

(2)	Did the respondent’s managers have reasonable grounds upon which to sustain such a belief in the claimant’s guilt following a reasonable investigation; 

(3)	Were the procedures adopted and the penalty imposed within the band of reasonable responses for a reasonable employer in all the circumstances;

(4)	If the claimant was unfairly dismissed, did he by his conduct contribute to his dismissal such that a percentage reduction of any compensation should be applied;

(5)	If there was a procedural irregularity rendering the decision to dismiss unfair, should a Polkey reduction be applied to any compensation awarded;

(6)	Is the claimant’s inability to work due to ill-health since the date of the dismissal attributable wholly, or in part, to the actions of the respondent in dismissing him and should compensation be adjusted to reflect this?

SOURCES OF EVIDENCE

4.	The tribunal had a bundle of documentation amounting to approximately 450 pages, the written statements of the witnesses together with their oral testimony.  The tribunal heard evidence from the following witnesses for the respondent: Ms Colleen O’Reilly, the claimant’s line manager; Ms Sharon Glover, HR Manager; Mr Mark McGurnaghan, Group HR Manager; Mr Murtagh, Deputy General Manager of the Slieve Donard Hotel; and Mr Meldrum, the General Manager of the Hotel.  The claimant gave evidence on his own behalf and the tribunal heard evidence from Mr Murphy and Dr Leggett on his behalf.

THE LAW

5.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

6.	The task for the tribunal in a misconduct dismissal case is set out in the case of Dobbin v Citybus Ltd 2008 NICA 42 where the Court quoted as follows from the case of British Home Stores Ltd v Burchell 1980 ICR 303: 

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

7.	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

8.	The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.  There was no breach of the SDP in this case.

9.	The starting point for the calculation of the compensatory award is A157 (1) of ERO which provides:

“(1)	Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

10.	The case of Dignity Funerals Limited v Bruce 2005 IRLR 189 (Court of Session), sets out the approach to be adopted by a tribunal in cases where a claimant claims that he is medically unfit to work because he was dismissed.  The relevant principles from this decision are as follows:

(1)	The tribunal must consider two main questions: whether the claimant’s dismissal was one of the causes of his wages loss and, if it was, what compensatory award would be just and equitable in the circumstances.  The first question is one of fact; the second question is one of discretion.

(2)	If it can be shown that the depressive illness was caused by the dismissal and that this prevented the claimant from working, then a full award for loss of earnings should be made.

(3)	In contrast, if the dismissal is one of two or more concurrent causes of the claimant’s loss it is up to the tribunal to decide on a just and equitable award which would be less than an award of the full loss of wage.

(4)	It is for the tribunal to find the extent to which the depression was caused by the dismissal and then to look at the extent to which this prevented the claimant from finding work.
 
11.	On the contributory conduct issue the tribunal must firstly, consider whether the claimant was guilty of blameworthy conduct that contributed to the employer's decision to dismiss; and, secondly, whether it is just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault.  The test is whether the claimant's behaviour was perverse, foolish or 'bloody-minded' or unreasonable in the circumstances.  If contributory fault is found both the compensatory and basic awards are reduced by the same percentage.

12.   	The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.

FINDINGS OF FACT AND CONCLUSIONS

13.	The claimant was employed as a concierge at the Slieve Donard Hotel from 1 October 2007 until his dismissal for gross misconduct on 15 May 2015.   The reason given for the dismissal was:  “A breach of procedure leading to a loss of trust and confidence”.   

Missing chocolates issue

14.	An incident occurred on 13 May 2014 which was the trigger for a sequence of events which ultimately led to the claimant’s dismissal.  On that date the claimant signed for, and took delivery of, a large consignment of chocolates which, he maintained, he delivered to the first floor office in the hotel.  The claimant was later questioned about their whereabouts because they could not be located.  

15.	An investigatory meeting took place with Ms O’Reilly to find out from the claimant what had happened to the chocolates.  

16.	At the disciplinary hearing on Friday 6 June 2014 with Ms Glover a charge was put to the claimant and he was ultimately disciplined in the form of a recorded Verbal Warning which was due to expire on 5 December 2014.  This was the lowest possible penalty under the formal disciplinary procedures in the Company Handbook.  The claimant appealed the Verbal Warning, that hearing took place on 13 June 2014 and his appeal was refused on 16 June 2014.

17.	The consignment of chocolates was later found and, due to this development, the claimant was invited to a meeting which took place on 11 November 2014.  The purpose of the meeting was for managers to review whether the disciplinary sanction of a recorded Verbal Warning should stand.  By letter of 26 November 2014 the claimant was advised that a decision had been taken that the disciplinary sanction should stand because the claimant took delivery of the chocolates, they were not delivered to the correct location in the hotel, and they were misplaced because of the claimant’s actions.

The alleged threat

18.   	The claimant’s line manager, Ms O’Reilly alleged that, between the investigatory and the disciplinary hearing, the claimant stated to her that if he was disciplined in relation to the missing chocolates he would go off sick for six months.  This was the “threat” relied upon by the respondent's managers in their later dealings with the claimant and others.

19.	Following the disciplinary hearing on Friday 6 June 2014 the claimant went off sick on 9 June 2014 and never returned to work.  The respondent's managers saw this as the claimant carrying out his threat to go off sick if he was disciplined.

20.    During the disciplinary hearing the following exchange is recorded in the disciplinary meeting minutes and it was agreed that this was not a verbatim record:  

“CG 
(Miss O'Reilly)	
I have nothing more to say about the minutes.  I do have one more thing though, after the investigation meeting you told me that you would go off on the sick for 6 months if you got in any trouble over this, can you confirm that?	

MO’H(the claimant)	
There is nothing worse than being accused of something that you didn’t do, I am not sure exactly what I said but yes.
Its not my fault that its not located and I cant see how this is my fault.	

CG	
You realise that you cant say that stuff, and you did say it.  
Thats all I have to say.	

SG	
Is there anything further you want to say?	

MO’H	
I hope that they are found, this is all being put on me, I left them where I always leave the stuff.  There is CCTV I don’t understand how a box of that size can go missing.  It doesn’t make me feel confident about signing for anything.	

CG	
Its never happened before	

MO’H	
Who is to say it will never happen again
In future I would feel more secure if someone countersigned for the package
I am finding this very stressful 	

CG	
Mark you do realise that we need to find them”. (sic)	

21.   The claimant’s statement was that he had told Ms O’Reilly before his disciplinary meeting that the whole situation had been “stressing him out” and that he had not been sleeping with worry over it and it was seriously affecting his health.  He stated that he might need to go to the doctor to get a sick line.

22.	We found the evidence of Colleen O’Reilly unsatisfactory in general and we prefer the claimant’s account of the alleged threat for the following principal reasons:
			
(1)	The record of the conversation set out at paragraph 20 is not a verbatim record and it is consistent with the claimant’s account. In evidence to us Ms O’Reilly stated she could not remember whether the claimant told her he was stressed out; she did not therefore deny the claimant’s account. She accepted in evidence to us that she knew he was “stressed out” after the investigation.

(2)	The claimant provided an explanation to us, which we accept, that his anxiety at being accused of dishonesty led him to fear that he might need to be off sick.  This accords with the GP assessment of him as “fragile” given his previous history. The GP provided the claimant with a sick line as he assessed him to be genuinely ill.

(3)	Ms O’Reilly’s evidence on when the missing chocolates were located and the reason for her lengthy delay in acting on this development to review the verbal warning was at odds with the clear evidence of the other managers on this point. This tainted her reliability for us.
			
Statutory Sick Pay issue

23.	The respondent’s managers formed the view that, as the claimant had threatened to go off sick if he was disciplined and he carried through with that threat, he was not genuinely ill and they therefore refused to pay Statutory Sick Pay (SSP) to him.  There then ensued the HMRC process whereby the claimant appealed against the refusal to pay SSP, HMRC decided that he should get SSP, and the respondent subsequently appealed that HMRC decision.  The outcome of the HMRC process was therefore that the claimant was found to be unfit for work to the extent that he 

was entitled to SSP for the relevant period and the employer was ordered to pay the SSP.  The SSP was finally paid on 26 November 2014 which was approximately 26 weeks after the claimant’s SSP claim.  

24.	In the course of that process the respondent sent to HMRC extracts from the claimant’s Facebook and Twitter accounts to show that he was engaged in social activities and travel to football matches in Dublin and further afield in Europe.  The respondent also drew HMRC’s attention to the alleged threat to go off sick made by the claimant.

25.	HMRC had the claimant medically examined by its own independent Occupational Health (OH) adviser and it appeared to be common case between the parties that the HMRC process also involved contact with the claimant’s GP Dr Leggett.

26.	It was part of the claimant’s case to us that the refusal to pay SSP and the engagement by the respondent in the HMRC appeal process was a vindictive act. In our view the employer was entitled to use the HMRC procedure in view of its doubts about the genuineness of the claimant’s illness.  We do not find this to have been an act of victimisation of the claimant as the employer was entitled to query the claimant’s fitness and to let that process run its course. 

27.	The claimant complained that his employer delayed in actually paying the SSP cheque and insisted that he attend at the hotel to collect it.  It appears that the only relevance of this point to this case is in relation to whether or not it supports the claimant’s contention that there was a predetermined outcome on the disciplinary process which led to his dismissal.  We find that this shows the continuing animus of the respondent's managers to the claimant in relation to his sickness absence. 	Despite the HMRC adjudication and the outcome of their independent OH assessment of the claimant, the respondent’s witnesses also made clear in tribunal that they still maintain that the claimant was not genuinely ill at any point but that they paid SSP because they were directed to do so.

Social Media Extracts

28.	As set out above, the respondent’s managers obtained extracts from the claimant’s social media in the form of Facebook and Twitter accounts.  These were sent by them to the claimant’s doctor, to HMRC and to the OH doctor, Dr Anderson.

29.	At hearing we were brought through in detail all of the postings and they essentially show the claimant going to football matches in Europe, going to family weddings and showing that he had a social life on a series of dates in 2014 and 2015.

30.	Mr Murtagh in cross-examination stated that he discounted the postings to a certain extent when deciding whether to dismiss the claimant.  It is clear however from the evidence of the other managers that the postings were a particular problem for the respondent and that they felt that they supported their strongly-held view that the claimant could not have been genuinely sick.

31.	We accept the evidence of Dr Leggett that the postings are not incompatible with someone suffering from stress, anxiety and depression.  Indeed this is what Dr Anderson, the OH doctor retained by the respondent, also concluded in her report as all the doctors appear to be clear that the claimant’s symptoms related to his sense of grievance and unresolved issues with his managers relating to the disciplinary process following the chocolates incident.

The Medical Position

32.	We were provided with an extract from the GP notes and records together with a statement and oral evidence from the claimant's GP, Dr Leggett.  We also had the report from the OH doctor Dr Anderson who examined the claimant at the respondent's behest in March 2015.

33.	There are two strands in this case namely, firstly, the claimant’s ill-health which was covered throughout by his GP’s sick lines and, secondly, the OH assessment relating to how to get the claimant back to work.

34.	Dr Leggett and the claimant accepted in evidence that the employer was entitled to pursue the OH assessment even when the claimant was certified unfit by his doctor.  There was therefore an acceptance by the claimant’s side, firstly, that the two processes ran in tandem and, secondly, that the fact that the claimant was covered by sick lines did not preclude the employer from referring him to OH to see if there were ways of facilitating a return to work.

35.	The claimant submitted a series of sick lines to cover his sickness absence and most of the sick lines cited stress, anxiety and depression as the reason for his absence.  On one sick line work-related stress was mentioned.

36.	Dr Leggett was clear in his evidence that it remained his view that the claimant was genuinely suffering from his condition during the entire period and that the sick lines were warranted.  Dr Leggett’s evidence to us was that the claimant’s medical history of mental health problems meant that he was fragile generally.  

37.	Managers were aware throughout that the claimant had previously had mental health problems in the form of stress, anxiety and depression as he had had a period off work suffering from this condition.  The respondent accepted that he genuinely was ill during that period which was approximately one year before the period relevant to these proceedings.  

OH Referral

38.	It was the respondent’s case that the claimant had refused to attend OH appointments that had been arranged for him on three occasions; that he did so in an effort to frustrate the process as he had no intention of returning to work until the disciplinary sanction relating to the missing chocolates was removed; and, that he only attended medical and other appointments if they were useful to him. 

39.	On 7 August 2014 Mr McGurnaghan offered the claimant three possible dates for appointments.  The claimant responded by email on 11 August 2014 stating as follows:

	“Apologies that I had not yet responded to your letter.  However, I had spoken with HMRC who had advised me that I did not need to respond at present; they stated that as my sick line from the doctor had been rejected by my employer, that they are now the independent body dealing with this.  They advised me that they liaise with myself, my doctor, medical services and my employer to make a decision on my health, if I should currently be being paid and if any further action should be taken.

	However, I am keen to facilitate my return to work when fit to do so and if accessing my medical records will aid this, I am agreeable to consent to this.

	I have returned the completed medical consent form you had sent, which also has my doctors details on it.”

40.	Mr McGurnaghan responded as follows:

	“I have received your signed consent form and will now seek a report from your doctor.

	I have cancelled the appointment with Occupational Health pending the report from your GP”.

41.	We find from that exchange that Mr McGurnaghan cancelled the first OH appointment of his own volition as he had decided to seek a report from the claimant’s GP and we do not accept his characterisation of the claimant’s email as a refusal to attend as there was an implication in Mr McGurnaghan’s email that he accepted the claimant's response.  We find that this is an example of Mr McGurnaghan's unreliable interpretation of an event which we find supports our rejection of his account of the exchange with Dr Leggett in the meeting in the Hotel on 30 June 2016 as set out below.

42.	The second OH appointment was arranged by letter of 8 October 2014 and the claimant’s response was by email of 10 October stating that he would be unable to attend because of the nature of his illness.  One of the points made by the claimant was that Mr McGurnaghan had said in his email of 13 August that they were going to get a report from his GP but had not done so.  It was this refusal by the claimant that the respondent's counsel made reference to when going through the social media postings in tribunal.  Essentially it was the respondent’s point that the claimant was, on the one hand, refusing to go to an OH appointment because of his illness when, at the same time, he was able to travel to Germany for a football match.

43.	Mr McGurnaghan’s response to the claimant’s refusal was to write to his GP Dr Leggett to set out the history of sick lines, to indicate that the claimant had declined to attend two OH appointments and nine questions were posed to the GP to enable the employer to assess whether they could do anything to facilitate his return to work.  

44.	The third attempt to arrange an OH appointment was McGurnaghan’s letter of 13 November 2014.  At the same time Mr McGurnaghan wrote again to the GP as a report had been received from him which did not address the nine questions raised by the employer.  We accept Dr Leggett’s evidence that the report crossed in the post with the letter from the employer posing the nine questions.  A revised report was provided by Dr Leggett on 14 November 2015 (dated 11 November) which indicated as follows:
(a)	That the most important factor to facilitate the claimant’s return to employment would be a satisfactory resolution of the dispute between him and his manager.  This referred to the chocolates issue which was being reviewed because the chocolates had been found;

(b)	That redeployment might be explored; and,

(c)	That it might be useful to obtain advice from an OH Consultant.	

45.	By email of 18 November, the claimant refused the OH appointment for 25 November 2014 for three reasons:

(a)	That he had recently attended an OH Assessment for HMRC on 9 September;

(b)	That his doctor’s report was dated 11 November;

(c)	That he was awaiting the outcome of the review of the Verbal Warning related to the chocolates matter.  

46.	The outcome of the review of the Verbal Warning was sent to the claimant by letter of 26 November 2014 and it confirmed that the disciplinary sanction was not being rescinded because the employer was satisfied that, as the claimant had taken delivery and signed for the chocolates, it did not accept that the items were delivered to the correct place and that this was the claimant’s fault.

47.	Following that review outcome on 26 November 2014, the respondent did not immediately press on to arrange an OH appointment; they waited nearly four months to arrange the appointment with Dr Anderson which then took place on 23 March 2015.  We have no information on why the employer did not at that stage in November explore the suggestion by Dr Leggett in his report of 14 November that redeployment could be explored.  In Mr McGurnaghan’s statement it is clear that the HMRC outcome was sent to the respondent on 30 October 2014.  The SSP was finally paid to the claimant on 26 November 2014.  Following receipt of Dr Leggett’s report of 14 November 2014 Mr McGurnaghan stated that: “it was felt that all avenues in managing Mark O’Hare’s absence had been temporarily exhausted”.  This was the only explanation given to us for the delay in arranging the final Occupational Health appointment.

48.	Whilst the claimant’s email of 18 November 2014 makes clear that he will not attend the appointment in November and links it to the outcome of the chocolates issue, we do not understand why the employer accepted that from the claimant and also let things sit from the date of the outcome of the chocolates issue, 26 November 2014, until 17 March 2015 when they arranged the final OH appointment which the claimant attended.  It is our view that it was for the employer to press ahead with the OH assessment especially as this had actually been suggested by his GP in the report of 14 November 2014.

49.  	The respondent alleged in tribunal that the claimant was obstructive.  We do not find the claimant’s responses to the first three OH appointments as obstructive.  The employer would have been well within its rights to insist on his attendance in November 2014 as the GP report suggested that the claimant would be fit to attend and that was the actual recommendation by the claimant's GP. The respondent’s tardiness in arranging the OH Report following receipt of the GP report of 14 November 2014 was not the claimant’s fault.

Dr Anderson's OH Report

50.   	The claimant was notified of the fourth OH appointment on 17 March 2015 and he attended on 23 March 2015 with Dr Anderson.

51.	Dr Anderson’s report certifies the claimant to be “not unfit for work” on the day she examined him.  She was fully aware of the content of the social media postings as they had been sent to her by the employer but, nevertheless, she did not say that those postings indicated that the claimant was not unfit for work during any previous period.  Her professional medical opinion was that the postings confirmed that the claimant’s medical difficulties related to work as she stated:  “On an independently verified anxiety and depression scale today Mr O’Hare’s scores were within the normal range.  This would indicate that his symptoms are work related and would be in keeping with the fact that he can maintain social interests outside of work.”

52.	The respondent’s case was that when the claimant received the report at the end of March 2015 that it was so clear that he was fit for work that he should have contacted his employer immediately to go back to work.  They found that his failure to do so essentially amounted to the gross misconduct for which he was later dismissed.

53.	We reject the respondent's case that it should have been clear to the claimant from reading Dr Anderson's report that he was fit to return immediately and should have contacted the respondent to arrange to go back as there were several caveats in Dr Anderson's report namely:  
		
(1) 	that he would be fit to return to work following a workplace meeting; 
			
	(2) 	that it would be for management to determine whether it would be feasible to have a phased return by using up the holidays he had accrued; and
			
	(3) 	she stated; “the precise date for Mr O’Hare’s return to work would be as 		soon as management can facilitate.”	(emphasis added)

54.	After Dr Anderson’s examination the claimant had approximately three weeks left on his sick line and he was waiting for his employer to contact him about returning to work. Dr Leggett agreed that Dr Anderson’s report correlated with his notes where he noted on 20 March 2015 that the claimant was improving.  The improvement was due to an increase in medication.	The doctor referred to his note of 20 March 2015 where he states “has occupational work appointment on Monday, keen to return to work, feels antidepressants are helping, wary of atmosphere when returns may need phased return”.

55.	In the tribunal there was extensive questioning of Dr Leggett and the claimant on his improvement in December 2014 to January 2015.  We find that questioning to be beside the point because the doctor certified the claimant to be unfit and it is not, in our view, up to the claimant to present himself at work simply because he has improved somewhat when his doctor has certified him unfit to work.  

Second Disciplinary process

56.	There was no suggestion by the claimant’s side that there was any breach of the statutory dismissal procedures (SDP) in the second disciplinary process.  We therefore find no breach of the SDP.

57.	The employer's response to the report from Dr Anderson (which was received by them in early April 2015) was to wait to see if the claimant would present himself at work. The respondent’s managers formed the view following the alleged threat made by the claimant to go off sick, that he was not genuinely ill and this appears to have coloured their approach throughout their dealings with him.  Despite the sick lines from his GP and despite the HMRC adjudication following their independent assessment of the claimant, Mr McGurnaghan, in particular, held the view that the claimant was not genuinely ill.  So strongly held was this view by the respondent’s managers that they appear to have disregarded the caveats and recommendations in Dr Anderson’s report.  

58.	By the time the employer contacted the claimant, by writing the letter of invitation to the disciplinary hearing on 11 May 2015, another stressful event had occurred in the claimant’s life namely, his uncle’s death on 19 April 2015.  The claimant had obtained a further certificate from his GP for four weeks and that sick line was dated 20 April 2015.  

59.	When the claimant told the employer during the second disciplinary process about his uncle’s death, its effect on him and the reason for the further sick line, they essentially ignored that because they had decided by that stage that the claimant had been misleading everyone because he had been claiming for a very long period that he had been sick when in fact he was not.  We do not find that a reasonable position for the employer to adopt in the face of the following evidence to the contrary:
		
(1) 	The GP sick lines;
		
(2)	The HMRC assessment which led to the unfitness finding in relation to SSP;
		
(3)	Dr Anderson’s report which did not preclude prior illness despite the presence of the social media postings;
		
(4)  	The claimant’s account that the most recent sick line, issued the day after the claimant’s uncle’s death, was because he had had a relapse because of his uncle's death. Indeed Mr Meldrum stated in evidence that he accepted this point from the claimant;
		
(5)	The history that the previous year the claimant had been off sick with mental health issues following a panic attack at work which the respondent accepted was a genuine illness.  

60.	Following receipt of Dr Anderson’s report Mr McGurnaghan decided that this confirmed his suspicion that the claimant was fit for work.  The respondent then decided to invite the claimant to a disciplinary hearing.  The letter was sent by Mr Murtagh on 11 May 2015 stating that the purpose of the meeting was to consider the potential gross misconduct allegation of:

	“Any other breach of procedure leading to a loss of trust and confidence in you as an employee”.

61.	In that letter Mr Murtagh outlined the company’s concerns as follows:

	“Despite Dr Anderson’s conclusions you have continued to submit ‘Statement of Fitness for Work’ certificates to the Company contrary to her report findings and on Monday 4th May 2015 we received a further ‘Statement of Fitness for Work’ advising the Company that you will continue to remain unfit for work and will continue to remain absent from work duties.

	In view of this and the fact that you continue to absent yourself from your duties, it is the Company’s position that you are deliberately misleading the business in claiming to be unfit for work when in fact an independent medical report suggests otherwise”.

62.	The disciplinary hearing took place on 15 May 2015 and was conducted by Mr Murtagh with Mr McGurnaghan in attendance to take notes and “oversee” the process.  

63.	At the conclusion of that meeting Mr Murtagh decided that the claimant should be summarily dismissed for gross misconduct.  In evidence to us Mr Murtagh gave as his reason: “I felt that Mark had been absent for a 12 month period during which he made no attempt to return to work following a certification by Dr Anderson that he was fit to do so.”  In the letter of dismissal from Mr Murtagh on 19 May 2015 the reason for the dismissal was stated to be as follows:

	“There has been a breach of conduct and this has led to a loss of trust and confidence in you as an employee”.

64.	In oral evidence Mr Murtagh agreed that he decided that the claimant should be disciplined because his illness was not genuine and this meant that there was a loss of trust.  Mr Murtagh was aware of the HMRC situation, the outcome following the chocolates incident, the OH appointments issue and the social media extracts.  He stated that he discounted the social media postings to a certain extent.  

65.	Mr Murtagh stated that the loss of trust related to the threat which he believed the claimant had carried out and the length of time that the claimant had been off. He stated that the breach of procedure relating to the breach of trust and confidence was the procedure relating to the chocolates and the fact that he had not phoned the company to say that he had been advised to come back to work after he was examined by Dr Anderson.  We note in this regard that the claimant had already been disciplined over the chocolates matter.

66.	The appeal was conducted by Mr Meldrum who held an appeal meeting on 4 June 2015.  Mr Meldrum’s evidence was that he too was aware of the whole history including the alleged threat, the SSP issue, the chocolates sanction and the issues with OH appointments.  He continued to believe that the claimant’s illness was not genuine and based this on the alleged threat and the social media postings.  He was aware that the claimant’s uncle was sick and accepted the claimant’s statement that that had exacerbated his condition.

67.	Following that meeting Mr Meldrum carried out further investigations with Mr McGurnaghan which, in evidence to us, he clarified amounted to a discussion with Mr McGurnaghan about the whole situation.  We find that this supports our view that Mr McGurnaghan was the driving force in the disciplinary process and in the strongly-held belief by the company that the claimant had been misleading them all along.

68.	Mr Meldrum’s decision was that the claimant had deliberately misled the business in claiming to be unfit for work, (despite a medical report from Dr Anderson suggesting otherwise), and that this was a breach of conduct which led to a loss of trust and confidence in him as an employee.  In addition the outcome letter of 19 June 2015 makes clear that Mr Meldrum considered that the claimant had deliberately refused to attend OH and was obstructive about the company’s attempts to assist him in returning to work.  Reference was made by Mr Meldrum to the claimant’s attendance at football matches and sporting and social events.  The import of the appeal therefore was that Dr Anderson’s assessment of the claimant as being fit on the day she examined him, superseded all other evidence relating to the previous period.

69.	Despite the outcome letter making reference to the failure to attend Occupational Health and being obstructive, Mr Meldrum in evidence to us denied that he held the three failures to attend Occupational Health against the claimant. Mr Meldrum’s evidence was that redeployment was not an option because trust had been broken. 

70.	We find that different reasons were given by different managers for the dismissal and we also find that the procedure relating to the chocolates was unreasonably resurrected by Mr Murtagh. We conclude that this shows that the employer was determined to get rid of the claimant as they never believed that he was sick. We find that this indicates a predetermined outcome to the disciplinary process and rendered the decision to dismiss unfair.  It is hard to imagine what the claimant could have said or done to change this predetermined view particularly in circumstances where Mr Meldrum accepted the claimant’s point that his uncle’s illness had led to a worsening of his condition.  The latter point, however, did not affect Mr Meldrum’s conclusion nor did it give him pause to reflect: this was unreasonable of him.
 
The respondent's engagement with Dr Leggett

71.   	So convinced was Mr McGurnaghan in particular that the claimant was not genuinely ill that he wrote to the GP Dr Leggett to express his frustration at the claimant’s continued absence and essentially to threaten to report him to the GMC in relation to the continued issuing of sick lines.

72.	Mr McGurnaghan’s letter to Dr Leggett is dated 10 November 2014, three weeks after he had first requested a report from Dr Leggett.  The letter stated as follows:

	“I write further to my letter of 15th October 2014 to express my disappointment with the service we are experiencing.

	A request for a medical report on Mark O’Hare’s fitness for work was made three weeks ago but to date we have received nothing.

	Furthermore and what is equally disappointing is to learn that you were recently able to provide a similar report on Mark O’Hare’s prognosis to ‘Medical Services’, an independent body appointed by HM Revenue & Customs, yet we, who happen to be Mark O’Hare’s employer are still awaiting a report from you.

	It would certainly appear to be the case that you have no difficulty issuing ‘Fit Notes’ to Mark O’Hare to justify his continued absence from work but as far as providing a report to Mark O’Hare’s employer to justify his continued absence, this would seem to be a different matter.

	It may interest you to know that since the 7th June 2014, you have issued Mark O’Hare with seven individual ‘Fit Notes’ amounting to 22 weeks absence from work and claiming throughout that entire time that in your professional medical opinion, Mark O’Hare remains too unwell to attend his place of work.

	It is also my understanding that you reported similar to ‘Medical Services’ back in September 2014.

	It may further interest you to know that while you continued to provide Mark O’Hare with ‘Fit Notes’ he continued to function normally and pursue his normal day to day activities.

	For your benefit, I have enclosed a selection of social media postings, published by Mark O’Hare during the period that you claim him too unwell to attend his place of work.

	Extracts from his social media account illustrate Mark O’Hare’s ability to:

•	Attend pre-season football matches in Dublin on 12/07/14.
•	Attend Scottish League football matches, namely Dundee Utd in July 2014.
•	Attend birthday celebrations on 02/08/14.
•	Socialise in Sports Bars, namely ‘Mick Byrnes’ Bar in Castlebar Co Mayo on 31/08/14.
•	Enjoy leisure breaks at a hotel resorts, namely the Breaffy House Hotel & Spa on 02/09/14.
•	Enjoy corporate hospitality entertainment events, namely the Aviva Stadium, Dublin on 03/09/14.
•	Socialise at the Grand Hotel Malahide (Dublin) for pre match refreshments on 03/09/14.
•	Socialise at Harvey Nichols Champagne bar in Edinburgh on 22/09/14.
•	Enjoy day trips to St Andrews Golf Course on 24/09/14.
•	Attend numerous wedding celebrations on both the 24/07/14 and 03/10/14.
•	Travel to football matches in Germany on 12/10/14.

I cannot believe that these postings are the signs of a patient suffering stress and incapable of work and furthermore, I cannot believe that you continue to provide him with ‘Fit Notes’ that allow him to do so.

As a direct consequence of what has already happened and the fact that we strongly suspect that you will continue to provide him ‘Fit Notes’ to justify his continued absence, despite what you now know to be the case, I am considering my position in relation to reporting you to the General Medical Council.

Yours faithfully,

Mark McGurnaghan
Group Human Resources Manager
Hastings Hotels”

73.	We find the tone and content of the letter to be most unusual and can understand why the claimant’s side characterised it to us as an attempt to bully the GP because he had provided sick notes for the claimant.

74.	Following the dismissal of the claimant on 15 May 2015, Mr McGurnaghan wrote on 27 May 2015 to Dr Leggett to invite him to meet him and the Managing Director of Hastings Hotel, Mr Hastings.  That letter states as follows:

	“I am writing to inform you of the Company’s recent decision to dismiss Mr O’Hare from the Company’s employment.

	Our decision to dismiss Mr O’Hare follows his decision to continue and submit ‘Statement of Fitness for Work Certificates’ to the Company despite us receiving a report from Independent Occupational Health (INDOCC) in early April confirming that he was suitably fit to attend his place of work.  

	Extracts from the OH report stated:

•	Mr O’Hare is fit to attend his place of work as the mental health questionnaire has not found any parameters of ill health.

•	Mr O’Hare is physically and mentally capable to attend meetings at this stage and I have encouraged him to do this with regard to address this issue.

•	There is no limitation on the precise days during the week that he can work.

Mr O’Hare attended INDOCC on 23rd March 2015 and received a copy of their report findings in and around 1st April 2015.

By choosing to continue and submit further ‘Statement of fitness for Work Certificates’, well beyond the date that he received the INDOCC report, the Company were left to conclude that Mr O’Hare deliberately misled it into believing that he continued to remain unfit for work despite the findings arrived at by INDOCC.

Naturally we were very disappointed at the outcome of this case but recognise that an opportunity now exists to meet with yourself and look at how best to avoid a similar situation happening in the future.

To that end, Howard Hastings, Managing Director of Hastings Hotels would be very keen to meet you for coffee at a date and time convenient to yourself.  Any such meeting would likely take place at the Slieve Donard Resort & Spa and if you are happy to meet Howard, I would be grateful if you could let me know dates and times when you might be available.

I look forward to hearing back from you.

Yours sincerely

Mark McGurnaghan
GROUP Human Resources Manager 
Hastings Hotels”

75.	By any measure this was a most unusual turn of events.  Dr Leggett gave evidence to us that he decided to attend the meeting to talk in general terms about the role of a GP regarding sick certificates and the seriousness of stress, anxiety and depression as he felt it was poorly understood generally.  The respondent is a major employer in the area and Dr Leggett’s practice is by far the largest in the area and many of the patients of the practice are employees of the respondent.  

76.	In the event, when the doctor attended the meeting on 30 June 2015, there were four “dossiers” produced by Mr McGurnaghan on specific employees who were his practice's patients.  Dr Leggett stated that he could not discuss individual patients.  Essentially the doctor then spoke of the role of the GP in relation to sickness certificates, the GP duty of care to patients, and he also spoke about how serious stress is.  He spoke in general terms of how people with stress, anxiety and depression can look normal and that the condition is poorly understood.  

77.	The employer then told the doctor about the alleged threat by the claimant.  Dr Leggett’s evidence to us was that he was surprised by the account of the alleged threat, wondered whether it was a sign of the claimant’s desperation and that, in response, the doctor said something along the lines of: “I can understand why you are so frustrated with me providing sickness certificates”.  Dr Leggett emphatically denied that he made the statement alleged by Mr McGurnaghan in his statement for these proceedings namely:  “Dr Leggett said that it was apparent to him that Mark O’Hare had successfully misled all of us throughout his entire period of absence”.

78.  	The debate before us in relation to the alleged comment by the doctor at this meeting related to the apparent attempt by the respondent to cast doubt on the appropriateness of Dr Leggett providing sickness certificates for the claimant and amounted to a challenge to his professional opinion on the genuineness of the claimant's medical condition.  This attack on Dr Leggett’s professionalism was made in the absence of any medical evidence to support that attack and in circumstances where the only other medical evidence available to us either supported, or did not detract from, Dr Leggett's medical opinion. 

79.	We accept Dr Leggett’s account of that encounter for the following principal reasons:

(1) 	Mr McGurnaghan’s evidence was emphatic to us that the doctor had made the statement which he attributed to him.  Mr Meldrum who was also at that meeting was much less emphatic about what the doctor was alleged to have said.  Mr Meldrum’s evidence to us on this point was: “It would be my belief in the conversation I was privy to that that was more or less the gist of what the doctor said”.

(2)  	We find this to be an example of Mr McGurnaghan attributing to another person words or sentiments of Mr McGurnaghan’s.   Another example of this is Mr McGurnaghan’s characterisation of the claimant’s email as a refusal to attend OH when in fact Mr McGurnaghan cancelled the appointment and decided to obtain a GP report instead.  (See para 41 above).

(3) 	We agree with Dr Leggett’s evidence to us that it would have been ‘ridiculous’ for him to make that statement in light of the fact that he continued to provide sickness certificates for the claimant and found him to be consistently unwell.  Dr Leggett’s evidence was that he could only say that the statement he did make was taken by Mr McGurnaghan to imply that he agreed with the employer's position as put to him in the meeting.  That was the employer's fixed view but it did not accord with the HMRC and OH view as set out above, whereas Dr Leggett’s opinion was consistent with the HMRC and OH assessments.

(4) 	The claimant had a history of anxiety and depression to the extent that he had been treated with antidepressants and CBT.  He had had more than one episode and the doctor's assessment of the claimant was that he remained “fragile” meaning that he was less resilient when it came to situations of stress.

The respondent’s submissions 

80.	The respondent's principal submissions are set out below together with our findings and conclusions.

(1) 	The respondent alleged that the misconduct was the claimant providing sick lines when he was in fact well and able to attend work.  The period in issue was after the Anderson Report was received that is that he continued on his existing sick line and then submitted another one.  We find that this was not the evidence of those who made the decisions as it was clear from that evidence that there was a fixed belief held by the managers involved that the claimant had not been genuinely ill from the outset of his absence and they gave different reasons for the dismissal as set out above.

(2) 	The social media extracts are relevant to this case as they show that the claimant was in fact well throughout the period.  We find that this is contrary to the evidence of Dr Leggett and indeed Dr Anderson and the HMRC assessments.  The only medical evidence before us was the direct evidence of Dr Leggett, the report from Dr Anderson and the fact that the HMRC assessment had assessed him as unfit.  All three medical assessments were done in full knowledge of the social media postings.  We therefore reject any suggestion that those postings suggest that the claimant was not as unwell as Dr Leggett and indeed the HMRC assessed him to be.
		
(3) 	That the social media extracts were also relevant to the claimant’s fitness to attend an OH examination because he was away in Germany in October 2014 at the same time as he said he was unfit to attend that OH appointment.  We find this point to be irrelevant to our deliberations in view of the medical evidence that the social media postings were not incompatible with the claimant being unwell. We have also rejected the contention that the claimant was obstructive over the OH appointments. 

(4)  	That the social media postings were relevant to whether to award future loss and whether he was fit for work.  We reject this contention and rely on the medical evidence in our assessment on this point as set out below.

(5) 	That the claimant should have contacted the employer to say that he was starting to feel better and in particular should have contacted the employer after he received the Anderson Report as the claimant was fit for work from the end of March to 19 April 2015. We reject this as set out in our findings on this point above.  The claimant was off on a valid sick line and the onus was on the employer to push the process forward.

(6)  	That Dr Leggett provided sick notes without understanding the full picture and that either the claimant was not telling him the full story or he misled the doctor. We reject that contention given that we accept Dr Leggett's professional assessment particularly as it is supported by the HMRC and the OH assessments.  

(7)	The respondent alleged contributory conduct being the conduct of the claimant in his failure to return to work when he was well.  The period in issue was either the entire period from when he was first off sick in 2014 or, in the alternative, the period between the end of March when he received Dr Anderson’s report and 20 April 2015 when the second sick line was produced. We do not accept that the claimant was guilty of blameworthy conduct in failing to return to work after he had received the report of Dr Anderson. We accept his evidence that he accepted that he was improving, he wanted to move on, and was waiting to be contacted as he was ready to engage with the employer about going back to work.  

81.	We find that the respondent’s arguments conflated several distinct matters namely the sick lines, the OH process and the reasonableness of the claimant’s apparent view that he could not return to work until the disciplinary action had been expunged and/or an apology had been given to him before December 2015.  This belief held by the claimant, whether it is unreasonable or not, does not preclude him from suffering from mental health problems.  We do not accept that any such view held by the claimant constitutes evidence to contradict the view of the medical experts.  The claimant’s evidence to us was that he became well enough in early 2015 and he decided to try to put things behind him and was becoming ready to return to work and was waiting for his employer to contract him following Dr Anderson's report. We accept that he was not insisting on an apology at that stage.   

The claimant’s submissions

82.	The claimant's principal submissions are as follows.  As set out in this decision we accept the bulk of these arguments.

(1) 	Breach of the implied term of trust and confidence should not be used as a convenient label to justify dismissal when an employer finds an employee troublesome (see Leach V OFCOM [2012] EWCA Civ 959).  We agree that the respondent in this case was using it as a label in view of the predetermined outcome and of the different accounts given to us of the reasons for the dismissal.

(2) 	The social media postings do not constitute evidence of medical fitness to work and are insufficient to displace the weight of the medical evidence which was that the claimant was unfit.  

(3) 	Mr Murtagh accepted in the light of Dr Anderson’s comments that he should discount the postings and did so.  Mr Murtagh therefore in deciding to dismiss the claimant relied on the alleged threat and Dr Anderson’s report alone and neither of these were enough to support the finding of misconduct in the light of the other evidence.  Mr Murtagh’s actual evidence to us was that he discounted the social media postings ‘to some extent’.  

(4)	The employer received a recommendation from Dr Anderson and it was unreasonable for them to do nothing and to wait a month before initiating contact by sending a disciplinary letter.  

(5)	There was a predetermined outcome evidenced by the following:
          
(1)	There was no investigatory stage in relation to the disciplinary matter which led to the claimant’s dismissal.
          
(2) 	Mr Murtagh was both the investigatory and disciplining officer which showed a predetermined view in light of the lack of proper investigation.

(3) 	The evidence relied upon by the respondent was massively outweighed by the evidence supporting his unfitness to work namely the claimant’s own evidence, the evidence of Dr Leggett in his report and in the sick notes; the HMRC assessment; and the claimant’s history of similar illness.

(4) 	In the appeal and disciplinary hearing there was no reference to alternatives to dismissal or mitigating factors.

(6)	There was insufficient evidence to hold a reasonable belief that the claimant was guilty of the alleged misconduct and the respondent’s actions were outside the band of reasonable responses.

(7)	The claimant was not obstructive in relation to the OH appointments as he indicated the first was unnecessary as it followed the HMRC assessment and the GP report; he was too unwell to attend the second; and the third was unnecessary.  The claimant attended the fourth appointment.  As set out above, we do not find the claimant to have been obstructive.

(8)	Dr Leggett’s evidence during the tribunal hearing was that the claimant was still attending with him and he was still unfit for work so the claimant should be compensated in full for his current unfitness and be awarded future loss for a period of one year. Our findings on this point are set out below.

SUMMARY CONCLUSIONS

83. 	The first issue for the tribunal is whether the employer had a genuine belief in the claimant’s misconduct and whether it had reasonable grounds to sustain that belief following a reasonable investigation.  The next issue is whether the employer acted within the band of reasonable responses for an employer in the circumstances in relation to the process and penalty.

Chocolates issue

84.	The significance of this issue to the case before us is that this was the catalyst which led ultimately to the claimant being dismissed for lengthy absence and it was also the context of the alleged threat by the claimant. It was also used by Mr Murtagh as part of the reason for his decision to dismiss the claimant. In these circumstances it is not necessary for us to go into detail of the events nor do we need to assess the reasonableness or otherwise of the disciplinary sanction and the review process.

85.	The respondent’s approach to this issue was that the claimant was unreasonable to regard the charge as an allegation of dishonesty and that the claimant was unreasonable to maintain a sense of grievance about this matter once the disciplinary sanction had expired in December 2014.  We find that neither of these points are relevant to the issue of whether or not the claimant was genuinely ill when he was covered by his GP sick certificates.  

86.   	Given the unreliability of Ms O'Reilly’s evidence we prefer the claimant’s evidence that he mentioned going to the doctor and having to go off sick because of the stress being caused to him at the thought of being disciplined over the chocolates given that he strongly maintained that he signed for them and dealt with them in accordance with procedure by leaving them in the first floor office.  In the claimant’s mind he was being accused of dishonesty in maintaining that stance and his view was that the disciplinary sanction meant that his employer did not believe his account and therefore suspected that he had stolen the chocolates.  Whether or not the claimant was reasonable in this belief is beside the point:  the claimant was a man with previous mental health problems whose reaction to the chocolates episode was for him to believe he was being accused of theft and this led him to become ill to the extent that he went off sick. 

87.   	In our view even if the claimant had issued the threat as the manager alleged, this did not, of itself, provide a basis for the employer's decision that the sick lines were not enough to show he had a genuine illness.  The employer seems to have become fixated with the idea that the claimant had threatened to go off sick for six 

months and carried through on the threat.  This led them to ignore the import of the GP’s sick lines which were effectively supported by the HMRC independent OH assessment for the period relating to his SSP.

88.    In searching out social media postings the employer was perfectly entitled to bring those to the attention of the GP so that he could take account of them in providing his professional assessment of whether the claimant had a medical condition which rendered him unfit for work.   In the same way the employer was perfectly entitled to bring their suspicions to the attention of HMRC so that they could take account of the information in deciding what course they should take.

89.  	We find that the employer unreasonably doubted the sick lines in the face of evidence from HMRC and the fact that the claimant had a previous history which they accepted as genuine.  It was unreasonable for the employer to rely on an alleged threat to negate the medical opinion.  We also find it unreasonable that the employer continued to maintain that stance before us in the light of the report of their own OH doctor who did not preclude prior illness despite the social media postings.

90.	Despite the implication from the respondent's counsel’s questioning of the doctor we find nothing untoward in the fact that the doctor assessed the claimant in telephone conversations.  We accept the GP’s evidence that telephone assessment is appropriate where no physical examination is required. It is not for us to critique the professional practice of any GP in the absence of any expert evidence to cast doubt on it.  On the contrary, in this case the only other medical evidence before us (Dr Anderson's report and the outcome of the HMRC medical assessment) either effectively agreed with Dr Leggett's assessment or accorded with it.   

91.	We find that the employer’s managers unreasonably focussed on Dr Leggett and attempted to put pressure on him in correspondence and in the hotel meeting when managers should have been pursuing more rigorously and in a more timely fashion the OH assessment process.  Failure to pursue the OH process in this way indicates to us an employer with an unshakeable and unreasonable belief that the claimant was not ill and supports our conclusion that there was a predetermined outcome to the disciplinary process.

92.	There is a burden on employers, especially when dealing with employees who are ill with mental health problems, to be proactive, clear and consistent in the way they deal with them. It is our view that good industrial practice requires that an employer who refers an employee to OH, should take the lead in relation to contacting the employee to facilitate his return to work.  We find that there is nothing in the Anderson Report to indicate that the onus was on the claimant to present himself at work immediately.  We find it unreasonable of the employer not to contact the claimant once they received a copy of that report in early April 2015.  It appears that by that stage the respondent's managers had an unshakeable belief that the claimant had misled them all along.

93.	We find it most unfortunate that the employer instead of pursuing the OH assessment route in a timely and efficient way, chose to put pressure on the claimant’s GP about the sick lines.  It is most unfortunate that the employer decided that social media postings of the claimant socialising and going to football matches meant that he could not suffer from mental health problems despite the medical evidence to the contrary.  Doctors are the experts in these types of conditions and the employer’s recourse if they suspect that an employee is being misleading is, firstly, to bring matters to the attention of the relevant doctors so that they can take account of such information in their professional assessment of the claimant’s health and fitness and, secondly, to pursue the OH process in a timely way to see if ways can be found to facilitate a return to work.

94.	We find that so much time had elapsed from the date of Dr Anderson’s report that it was incumbent on the employer to contact the claimant to clarify the position and /or to invite the claimant to a meeting to discuss the OH report from Dr Anderson and to explore how to get him back to work.  If they had done that they would no doubt have elicited that the claimant had had a further stressor in his life (namely his uncle's death) which had led to the further sick line. Resorting instead to issuing a disciplinary letter was unreasonable.

95.	It is not clear to us what the claimant was actually being accused of nor is it clear what constituted the misconduct that led to his dismissal given the differences on this point, in the evidence of Mr Murtagh, Mr Meldrum and the contents of the letter of dismissal and the appeal outcome letter.

96.	The part of the Staff Handbook cited in this case was the category of gross misconduct which stated: “Any other serious breach of procedure leading to a loss of trust and confidence in you as an employee”.  

97.	We find that this category was used to cover the fact that the employer was determined to get rid of the claimant because they had decided that in failing to come back immediately after he got Anderson’s report, this was a continuation of his threat to stay off sick because he had been disciplined over the chocolates.  We find this to be a wholly unreasonable stance for the employer to take in the face of the evidence that the claimant was genuinely ill.   

98.	We therefore accept that there was a predetermined outcome to the disciplinary process and the process and penalty were outside the band of reasonable responses for a reasonable employer in the circumstances of this case.  The claimant’s dismissal was thus unfair.  

99.	It was clear to us that this employer was very exercised about a number of cases of what they felt was unjustified sickness absence by a number of staff.  It seems to us that they may have wanted to make an example of the claimant and this may have led them to act unreasonably by effectively ignoring medical evidence in his case.

COMPENSATION

100.	It was agreed between the parties that the effective date of termination (EDT) was 15 May 2015.  The claimant was aged 32 at that date and had seven full years' service.  His gross weekly pay was £230 and his net weekly pay £215.77. The basic award was agreed in the sum of £1,610.  In relation to compensatory award the parties agreed the sum of £400 in relation to loss of statutory industrial rights.  The parties also agreed the sum of £431.54 for loss of long notice period.

101. 	The respondent claimed that the claimant failed in his duty to mitigate loss. We reject this contention given the fact that it was common case that the claimant has been, and is, currently unfit to work as he has been in receipt of Employment Support Allowance (ESA) and the parties agreed that this therefore means that the claimant is unable to work for medical reasons.

102.	The respondent had raised the issue of whether or not the claimant’s current unfitness and indeed unfitness from the date of the dismissal was attributable at all to the actions of the employer in dismissing him.  It was the respondent’s position that, factually, the unfitness was not caused by the respondent.  It was the claimant’s position that he should be compensated by the respondent for his current unfitness and for one year after the hearing.  Neither counsel was prepared to address us in detail on the legal principles involved.  The Employment Judge indicated that there were several legal authorities in this area one of which is the Dignity Funerals v Bruce case and gave both sides the opportunity to take time to make specific submissions on the legal authorities in this area.  Both counsel declined the opportunity to do so.  

103.	The claimant claimed 40 weeks’ loss of salary from the EDT to the date of the tribunal hearing in the sum of £8,630.80.  The claimant received ESA at the rate of £101.50 per week.  The total received in the 40 weeks was £4,060. 

104.	Future loss was claimed for one year in the sum of £11,220.04.  The ESA mitigation for that period amounts to £5,278.

105.	The claimant’s claim is for full loss of earnings from the date of dismissal as his case essentially is that all of his absence and medical unfitness is connected to the fact of dismissal by the employer.  

106.	The respondent’s case is that as the last sick line was issued following the uncle’s death and there was a previous history of mental health issues and issues caused by other stressors, that none of the loss from dismissal was attributable to the employer.  

107.	Following the Dignity Funeral v Bruce case we assess whether all or some of the unfitness for work following the date of dismissal was caused by the action of the employer in dismissing the claimant.  We find the following factors relevant to that assessment and to our conclusion that there are several causes of the claimant’s continued incapacity.    

(1)	We had evidence from Dr Leggett that the claimant is currently unfit for work. That is supported by the ESA which the claimant still receives and both sides agreed that that benefit is given to the claimant because he is medically unfit to work.  

(2)	The other medical evidence we have relates to the GP notes and records extract.  The only reference to reasons for stress on dates after the dismissal are as follows:

(a)	“15 May 2015 stressed re uncle’s bereavement, dismissed at work tribunal today”.

(b)	“28 September 2015 going through a stressful time going through court case”.
(c)	“2 December 2015 court case in January”.

(d)	“20 January 2016 Hastings case discussed”.

  	We take from this that this case (which is a consequence of the dismissal) is the major stressor for the claimant at the minute and since September 2015 and the resolution of the case in the claimant’s favour will likely help him move on to seek employment.

(3)	Dr Leggett was clear that the claimant’s lengthy period off work due to stress, anxiety and depression had its roots in the disciplinary process involving the missing chocolates.  The doctor’s evidence was that he had seen very little of the claimant in the previous four or five years with these problems.  It was however common case that the claimant had been off about a year before the chocolates issue with a panic attack at work but this may not have involved going to see the doctor.

(4)	Dr Leggett was clear that the claimant felt that he had been accused of dishonesty in relation to the chocolates and this was clear from the claimant’s evidence to us.  His lengthy period of illness therefore started from that point because of that belief on his part.

(5)	It was clear that another stressor was the non-payment of SSP by the employer and the process that was gone through with HMRC and the claimant felt victimised because of this.  We have not criticised the respondent’s actions in the HMRC process.

(6)	Dr Anderson assessed the claimant as not unfit on the day she examined him   namely 23 March 2015.  Dr Leggatt at that point noted the claimant had improved with medication to the extent that he envisaged a possible phased return to work.  

(7)	The doctor agreed that in the claimant’s mind by 5 December 2014 the disciplinary matter did not finish with the expiry of the sanction as for a period the claimant wanted an acknowledgement that he had not acted inappropriately.  The claimant improved with medication to the extent that he was ready to consider going back to work once he had had a discussion with his employer.  He then had a relapse of his condition due to his uncle’s death in April 2015.  We accept that the claimant was not completely better before his uncle’s death.

108.	The claimant’s incapacity since the EDT therefore relates principally to the following: the dismissal; his uncle’s death; his general fragility due to prior illness; and the medical effect on him of his sense of grievance over the chocolates issue and the HMRC referral issue.  We therefore find that the dismissal was only one of several reasons for his continued incapacity and, as a consequence, we find that not all of the wages loss from the EDT was caused by the dismissal.  

109.	Taking account of the above factors we have decided that it is just and equitable to award compensation for loss of wage for 6 months from the date of the hearing i.e. to 26 August 2016 to take account of our finding that there are concurrent causes of the claimant’s inability to work from the date of the dismissal. For ease of calculation we have decided to limit the period for future loss rather than to reduce the compensation for past and future loss of earnings by a percentage.

Summary compensation
		
110.	(A) 	Holiday pay:							£  863.08
 
	(B) 	Unfair Dismissal compensation:
	
	(1) 	Basic Award:  						£ 1,610.00
	
	(2) 	Compensatory award:

 		-	loss statutory industrial rights: 			£  400.00
					
-	loss long notice:					£  431.54
					
-	 loss earnings EDT to date of tribunal  		
i.e. 15 May 2015 to 25 February 2016:		£ 8,630.80
					
				Future loss: 6 months from date of hearing
				25 February 2016 to 25 August 2016
				26 weeks @ £215.77 per week:			£ 5,610.02
				Less ESA – 26 weeks @ £101.50 =		£ 2,639.00 

			Net future loss =						£ 2,971.02

			Total compensatory award:				£12,433.36

			Total Unfair Dismissal compensation:			£14,043.36
	
Recoupment statement

(A)	Compensatory award:					£12,433.36

(B)	Prescribed element, i.e. loss of wage relating
	to period between EDT and date of hearing:		£ 8,630.80

							(A) – (B):		£ 3,802.56

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

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

Employment Judge:

Date and place of hearing:  22-25 February 2016 at	 Belfast.

Date decision recorded in register and issued to parties: