THE INDUSTRIAL TRIBUNALS 

CASE REFS:           2252/15   
            2253/15
2375/15

CLAIMANT:                        Jason Steele		

RESPONDENT:	Asda Stores Limited	

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and was not subjected to unlawful disability discrimination. The claimant’s claims are dismissed in their entirety.

Constitution of Tribunal:

Employment Judge:	          	Ms J Knight	

Panel Members:   			Mr J Hughes
                               			Ms M Mulligan

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Ms R Best Barrister-at-Law instructed by Pinsent Masons LLP.

Issues

1.	The claimant lodged originating claims with the Office of the Tribunals in which he claimed that he had been unfairly dismissed and subjected to unlawful disability discrimination.

2.	Other complaints of sex discrimination, breach of contract, the right to receive an itemised pay statement were withdrawn by the claimant at a Case Management Discussion on 18 December 2015. The parties then agreed a List of Legal and Factual Issues to be determined by the tribunal.

3.	At the Hearing, the claimant clarified that his disability discrimination claim was limited to an allegation that the respondent had failed to make reasonable adjustments for him from the date of his suspension from work, the investigation of allegations made against him by a female colleague and the disciplinary process which led to his summary dismissal for gross misconduct and not to any earlier events.

4.	The respondent denied that the claimant was unfairly dismissed or that there was a failure to make reasonable adjustments for the claimant.  It was disputed that the claimant had a disability within the meaning of the Disability Discrimination Act 1995 (as amended) at the relevant time, but that if the tribunal found that he did, the respondent was not aware of that disability.

Sources of Evidence

5.	The tribunal considered the witness statements and oral evidence of the claimant, Mr Jason Steele, on his own behalf and of Mr Mark Kernohan, Mr Oliver Martin, Mr Raymond Warke and Mr Simon Walsh on behalf of the respondent. The tribunal also took into account documentation contained in an agreed trial bundle to which it was referred during the course of the hearing.

Findings of Fact

6.	The tribunal made the following findings of relevant fact on a balance of probabilities:

1)	The claimant, Mr Jason Steele was employed as a Nightshift General Assistant by the respondent, Asda Stores Limited until his summary dismissal for gross misconduct on 21 July 2015. 

2)	In July 2014 the claimant went on a prolonged period of sick leave. His GP provided statements of fitness for work that he was unfit for work due to “anxiety”. The claimant told the tribunal that he has suffered from anxiety and depression for most of his life and that his symptoms include low mood, difficulty sleeping, loss of interest in normal activities and friends, exhaustion, a negative outlook on life, irritability, lack of focus and concentration and a constant feeling that something bad is going to happen. He had given up his hobbies like training at the gym and martial arts and struggled with social activities. An extract from the claimant’s GP notes and records was in the hearing bundle. These detailed the claimant’s consultations with his GP from 10 May 2004 up until 24 July 2014. An entry dated 31 January 2014 stated that the claimant had a “generalised anxiety disorder”. On 24 July 2014 the claimant attended with his GP and  “discussed anxiety - poor sleep pattern with shift work etc”. These notes did not contain any information as to how the claimant’s anxiety affected his day to day activities.

3)	The respondent arranged for the claimant to be assessed by an Occupational Health Advisor on 8 August 2014 due to his continuing sickness absence. The claimant told the Occupational Health Advisor that the reason for his absence was “low mood” due to domestic and financial worries and the death of his best friend. While the occupational health advisor reported on 25 August 2014 that the claimant was still unfit for work at that time but did not suggest that the claimant had any disability or that any adjustments should be made for him. The claimant signed himself fit to return to work on 2 September 2014 because he said that he felt pressurised to return to work.

4)	The respondent’s disciplinary policy contains examples of conduct which may amount to gross misconduct. These include: “Serious harassment, discrimination or bullying of other colleagues, either generally or on grounds relating to difference on company premises or at a social or training event.” The Social and Media policy gives further examples of gross misconduct including “serious harassment, discrimination or bullying of other colleagues which occurs out of work” involving emails and Facebook messages. The respondent’s policies provide for the suspension of an employee where there are grounds to believe that a gross misconduct offence may have been committed and it would be unreasonable to take disciplinary action without further investigation and/or it would be unreasonable to allow the colleague to continue in the job whilst further investigation takes place. The suspension policy requires a risk assessment to be carried out before an employee is suspended and the time spent on suspension should be kept to a minimum and reviewed every two weeks.

5)	On 17 December 2014 a female nightshift colleague, AK, sent a letter to the respondent complaining that from 16 June 2014 onwards she had been sexually assaulted by two male colleagues, LG and KG; that in the following months they sexually harassed her by sending her texts containing inappropriate messages and photographs of a sexual nature; and that in or about 5 December 2014 LG and KG had spread untrue sexual rumours about her. She further alleged that she had rejected advances from the claimant who had sent her extremely abusive text messages containing several references to incidents at work involving LG and KG. She stated as a consequence of the actions of LG, KG and the claimant, she no longer felt safe in work. 

6)	The claimant was informed on 18 December 2016 that he was being suspended from work. The claimant’s line manager carried out a risk assessment on 19 December 2014 and confirmed that it was appropriate to suspend the claimant pending the investigation into AK’s allegations.  His suspension was confirmed to the claimant by letter dated 19 December 2014 which also invited him to attend an investigatory meeting on 23 December 2014 to answer allegations made against him of “intimidation, bullying and harassment between the dates of 17 June 2014 and 20 December 2014”. It was advised “these allegations are deemed as gross misconduct and may lead to your dismissal”. The claimant was informed that the meeting was to be conducted by Mr Mark Kernohan, General Store Manager, Ballymena and that he had a right to be represented at the meeting by a trained colleague representative, a work colleague or a trade union official. The claimant was advised that his suspension should not be taken as an indication that the respondent had already reached a conclusion about disciplinary action. 

7)	The claimant was unwell on 23 December 2014 and so the investigatory meeting was rearranged for 6 January 2015. He was accompanied by his trade union representative, Ms Michaela Lafferty. Mr Kernohan informed the claimant that he was investigating bullying, intimidation and sexual harassment in the workplace against the claimant which could amount to gross misconduct in accordance with Asda policies. Mr Kernohan asked the claimant to respond to AK’s allegations that the claimant had bullied, intimidated and harassed her by way of text and Facebook messages. Screenshots of these messages were shown to the claimant at the meeting. The claimant told Mr Kernohan that he had enjoyed a good working relationship with AK, which was flirtatious at times. She sometimes asked the claimant to smell her hair.  On 11 December 2014 he and AK had arranged to meet around midnight in the Cullybackey Spar car park and she sent him text messages and waited for him to return to the carpark after he had driven home, having mistakenly thinking that she had not turned up. AK sat on his knee in the car and tried to persuade him to give her the names of colleagues who she thought had been texting about her in work. He said that she let him stroke her hair and “pet” her but that when the claimant tried to kiss her she got back in her own seat, which the claimant found “weird”. He had then made his excuses at approximately 3:30am and went home.

8)	The claimant admitted to Mr Kernohan that about a week before he had told colleagues in work that he would “ride” AK but that LG had told the claimant “Don’t get the wrong idea with AK, she likes to flirt but if you want anything else you would be wasting your time.” The claimant also confirmed that he had heard rumours in the workplace that AK had sexual encounters with work colleagues in the warehouse and in the car park. Mr Kernohan suggested that the claimant was angry with AK for refusing to have sex with him. The claimant denied this as he stated that he had met up with her not with the intention of having sex but rather to persuade her to attend a staff Christmas night out on 13 December 2014. AK told the claimant that she was not going to the Christmas function but in the event she did attend and was accompanied by her fiancé. Another male colleague, CN, then told AK’s fiancé that she had been “cheating” on him and allegedly became aggressive towards AK. AK and her fiancé then left the staff event. AK made no complaint to the respondent about CN’s behaviour. The next day the claimant sent messages to AK on Facebook and again on 17 December 2014 to see if she had “smoothed” things over with her fiancé.  She replied to him that she had not done anything wrong. He told Mr Kernohan that he was angry with AK because he believed she unfairly blamed him for CN telling her fiancé that she had cheated on him. The claimant admitted sending her abusive Facebook messages including: “U are a manipulating wee bitch and if I was Stevie I wud kick you too the kerb” and “You know what fuk u. I’ve shit better out of my arse than u. Ur not naïve, u only let on u are. Trying to make me feel bad and that I caused all this. Go and get fingered in the chiller u skanky tramp. Don’t break breath to me in work ever again!!! Laughable.” Shortly afterwards the claimant sent further messages apologising to AK for his comments. She did not reply to the claimant. The claimant informed Mr Kernohan that he had deleted AK from his Facebook account on 13 or 14 December 2014. At the Hearing, the claimant asserted that he had been provoked by AK into sending these messages when she suggested that she had not done anything wrong and because he felt she blamed him for CN’s actions. Having considered the exchange of text messages the tribunal did not consider that AK had stated anything which could remotely warrant the comments made by the claimant.

9)	Mr Kernohan informed the claimant that AK had made allegations against other colleagues which were so serious that the respondent had recommended that she report them to the Police. He adjourned the meeting to carry out further investigations. The claimant continued to be suspended on full pay. Following this meeting Mr Kernohan interviewed the whole of the night crew in the Antrim store.

10)	The investigatory meeting reconvened on 14 January 2015 and the claimant attended again accompanied by his trade union representative. Mr Kernohan informed the claimant that he had interviewed both CN and AK in relation to a number of matters.  He sought clarification of the claimant’s earlier statement that he had deleted AK from Facebook on 13 or 14 December 2014. The claimant maintained that he had but confirmed that he was able to start the conversation with AK again on 17 December 2014 even though she was no longer a friend of Facebook. AK had told Mr Kernohan that at the beginning of December 2014 the claimant had called her a “cock tease” The claimant responded that AK had called herself a “cock tease”, that she had accused him of “going with anybody” and had not shown him respect. He had not reported this as he thought it was a “private thing”. He admitted making offensive comments to her but reiterated that he had apologised to her and that she had no need to be afraid of him. He was very sorry for his actions which had ruined “a good friendship and working relationship” with AK. The claimant confirmed that he understood how his actions in combination with other events not connected to him could create a situation where someone was afraid to come into work. He pointed out to Mr Kernohan that AK’s allegations had been very stressful for him and his family, particularly over the Christmas period.

11)	Following an adjournment to consider the information gathered by him, Mr Kernohan informed the claimant that he was satisfied that although he had “no connection with the sexual harassment and alleged sexual assault suffered by AK”, his “rude and offensive texts and Facebook messages can been seen to have added to the pressure that the colleague was feeling in respect of bullying, intimidation and harassment in the workplace”. Mr Kernohan said he has taken into account the claimant’s “genuine remorse and apology for his actions” and that the claimant was “not aware that the rumours circulating dealt with an assault rather than a consensual act” but nevertheless decided it was necessary to place the matter before a Disciplinary Manager and that the claimant that he would remain suspended on full pay. 

12)	Mr Oliver Martin, then the General Store Manager at Shore Road, was tasked to deal with the disciplinary meetings. After initial consideration of the papers, Mr Martin referred the matter back to Mr Kernohan, who met again the claimant on 23 February 2015, to seek clarification from the claimant about two matters: Firstly, whether he had retained messages sent between himself and AK on the evening when they met in the car park in Cullybackey to which the claimant responded that he had deleted those messages; and secondly, whether any witnesses had been present when he alleged that AK had asked him to smell her hair to which the claimant confirmed that there had been no others present on those occasions.

13)	Mr Kernohan wrote to the claimant to invite him to a disciplinary hearing on 21 March 2015. The allegation was that “from 17 June 2014 until 17 December 2014, you intimidated, bullied and harassed a female night shift colleague, AK, which is deemed a gross misconduct offence and if proven could result in your summary dismissal from the company.” At the Hearing Mr, Kernohan told the tribunal that he was clear in his own mind that the allegations made by AK against the claimant related only to the period from 13 to 17 December 2014 and that the claimant had not sexually assaulted the claimant in a physical sense. He accepted that he had made a mistake in that the letter referred to the claimant’s actions as having occurred over the period 17 June until 17 December 2014.  He told the tribunal that he believed that this would have been corrected by the colleagues who conducted the subsequent disciplinary and appeal hearings as he understood that they were also aware of the correct dates. 

14)	The claimant was provided with a copy of AK’s letter of complaint, notes of the investigatory meetings with the claimant and AK and all witness statements obtained during the investigation. The claimant was advised that he should contact the People Team if he required a copy of the Disciplinary Policy and of his right to be accompanied by a trained colleague representative, a work colleague or a trade union official. 

15)	The disciplinary meeting was rescheduled at the request of the claimant due to the unavailability of his trade union representative and took place on 2 April 2015. Mr Oliver Martin conducted the disciplinary hearing with Heather McCartney in attendance as a note taker. The claimant was accompanied by his trade union representative, Mr Greg Attree. At the outset of the hearing Mr Martin confirmed that the allegation made against the claimant was that he “bullied, sexually harassed and intimidated a work colleague by way of text message in the workplace and out of work”. Mr Attree reminded Mr Martin that the harassment alleged against the claimant was not of a sexual nature. 

16)	The discussion at this meeting centred around the claimant’s conduct towards AK during December 2014, namely the meeting between the claimant and AK in the carpark, the Christmas function and the Facebook messages sent by the claimant to AK. The earlier allegations involving the other male work colleagues were only discussed when Mr Martin sought clarification about how the rumour came about that AK had had sexual contact with a colleague in the chiller area. The claimant confirmed that he had sent the Facebook messages because he was very angry as AK appeared to be blaming him for CN telling her fiancé that she had cheated on him for which he had apologised to AK. Mr Martin informed the claimant that he was adjourning the meeting so that he could gather further information. He reminded the claimant that he remained suspended pending the disciplinary investigation.

17)	The adjournment was supposed to be for a “maximum of 7 days” but a date was not fixed for a further disciplinary meeting until 28 May 2014. The delay was due to Mr Martin and Ms McCartney being on annual leave and Shore Road store annual stock take. Mr Martin also took advice on procedural matters from the Senior Manager of People. The new date did not suit the claimant as he was moving house and it was changed to 4 June 2015. The meeting reconvened on that date and Mr Martin said he had some further questions to ask the claimant about the text messages sent to AK. However the meeting had to be adjourned again because the claimant needed further time to read and consider the minutes of the 2 April meeting, which had not been provided to him in advance of the June meeting. 

18)	The disciplinary hearing reconvened at 2-30pm on 11 June 2015. Mr Martin accepted that his witness statement was inaccurate where it stated that the claimant attended the meeting but arrived late and that he questioned the claimant further about what he considered to be key elements of the case, namely the Facebook messages, what happened between AK and another colleague in the chiller and the meeting he had with AK in the carpark. Mr Martin accepted that this part of his evidence was completely incorrect and suggested that the relevant paragraphs should have appeared earlier in his witness statement, as he had discussed these matters with the claimant at their first meeting.

19)	The claimant in fact did not attend on 11 June 2015. His trade union representative, Ms Lafferty was present and told Mr Martin she had not been speaking to the claimant but was aware that documents including notes of 2 April meeting had been sent in error to LG (whom she also represented) instead of the claimant. Mr Martin was minded to proceed in the claimant’s absence but adjourned the meeting at 3.21pm when Ms Lafferty said that she would did not have the claimant’s authority to answer questions or make any statement on his behalf.  During the adjournment, Mr Martin reviewed the evidence and proceeded to reach a decision that the claimant was guilty of gross misconduct. His notes record that he considered that the Facebook messages sent by the claimant amounted to “serious harassment, discrimination or bullying of another colleague which constitutes an act of gross misconduct”. Mr Martin inferred that the claimant was motivated by jealousy because AK had rejected his sexual advances in the carpark when, in his view, she had willingly participated in sexual activity in work with LG and KG.  The tribunal accepted that this inference was one that could be reasonably drawn from the evidence before Mr Martin at that time.  He decided that there was no other option but to dismiss the claimant summarily for “a serious breach of the disciplinary and grievance policy which had made the colleague feel unsafe at work”. 

20)	Mr Martin reconvened the meeting at 3.57pm and then telephoned the claimant who advised he had not received notification of the meeting. The claimant also told Mr Martin that he could only attend meetings at certain times and that he intended to raise a grievance because his documents had been sent out to the wrong person. The fact that the claimant was already aware that the documents had gone astray led the tribunal to doubt his evidence that he did not know that the meeting was taking place.  Mr Martin told the claimant that the error would be investigated and that the meeting would be reconvened for a time within the claimant’s normal working hours. Mr Martin did not take this opportunity to inform the claimant that he had already decided on the disciplinary outcome. Instead he returned to the regional office and updated Charlotte Elliott, the Senior Manager (People) of “my outcome”. It appears that a decision was taken to adjourn and “re-invite” the claimant to a further meeting so that the outcome could be communicated to him personally. As Mr Martin left Asda for other employment on 13 June 2015 and the respondent appointed Mr Roy Warke, General Store Manager, Coleraine to complete the disciplinary process. It was contended on behalf of the respondent at the Hearing that Mr Martin had made the decision but Mr Warke’s role as the “outcome meeting manager” was to look at the investigation notes, previous hearing and adjournment notes and either agree or disagree with Mr Martin’s decision, thus providing an “additional safeguard” for the claimant. 

21)	The claimant raised a grievance by letter dated 29 June 2015, hand delivered on 4 July 2015, that he felt bullied and intimidated by the actions of Asda. He complained that meetings were being arranged at times outside his normal working hours for which he was not being paid and incurring babysitting expenses; that his conduct was being linked to the actions of those colleagues against whom AK had made more serious allegations rather than being assessed on its own merits and that he had been on paternity leave when these actions had occurred; that he had not been sent his suspension risk assessment; that ASDA was not reviewing his suspension every two weeks and keeping in contact with him in accordance with suspension policy; that delay in bringing the matter to a conclusion was causing stress to him and his family; that he had not been offered counselling and support unlike AK, which indicated a bias against him; that Asda had posted his personal and private messages to LG which was an act of gross negligence about which he intended to seek legal advice; that it  was repeatedly stated at meetings that he was accused of sexual harassment, when he was not facing an allegation of this nature; that the breach of confidentiality and his continuing suspension left him vulnerable to being the subject of rumours at work; that the delay was deliberately designed to cause him stress and amounted to a deliberate bullying tactic. He stated that “no matter what happens I will be going to a tribunal to showcase the way in which you treat your colleagues ie no respect whatsoever”. The claimant made no reference in his grievance letter to his alleged disability or that he considered that there was a failure to make reasonable adjustments for him during the disciplinary process.

22)	. The respondent’s disciplinary and grievance policy provides that “the decision to pause or continue the disciplinary process is dependent upon the nature of the grievance and that where the grievance is related to the disciplinary matter the allegations should be explored as part of the disciplinary process with no need to stop the disciplinary process. Any concerns regarding the procedure will be dealt with at the appeal stage”. 

23)	Dates arranged for the reconvened disciplinary meeting on 7   and 14 July 2015 had to be rearranged because Mr Warke was on sick leave and then annual leave respectively. A further date on 17 July was then postponed due to the unavailability of the claimant’s trade union representative. 

24)	The reconvened disciplinary meeting eventually took place on 21 July 2015. The claimant’s trade union representative, Mr Raymond Neal, made further representations on his behalf that “it came down to the Facebook messages” as what had happened in the carpark was between consulting adults. He suggested AK’s “side of the messages” had been deleted.  He asked that the length of time that the claimant had been suspended should be taken into account and pointed out that the claimant sincerely regretted what he had said on Facebook and had apologised to AK. 

25)	After a short adjournment of 27 minutes, Mr Warke informed that claimant that whilst there was “no evidence to support any allegation of sexual harassment, this seriousness of the bullying and harassment carried out by him had resulted in a colleague namely AK feeling unsafe in the workplace for over a period of 6 months and that there was no alternative but to summarily dismiss with immediate effect as this constitutes a gross misconduct under the disciplinary and diversity and inclusion policies”. He told the claimant of his right to appeal against the decision within 7 days of the outcome letter. He told the claimant that his grievance was being dealt with separately from the disciplinary hearing by “the team in Antrim.” The claimant protested that he been absent from work until September 2014  and that Mr Warke had not taken into account that AK had provoked him into making his comments when she had blamed him for another colleague telling her fiancé that she had cheated on him. Mr Warke’s response was that the meeting was “to continue an adjournment and read through the decision made by the previous hearing manager”. The claimant questioned how a decision could have already been reached given that Mr Martin had previously informed him that he had further questions to ask him and Having earlier in the meeting informed the claimant that the grievance was a separate matter, Mr Warke asked the claimant if he would like him to read through a “list of potential grievance responses” provided by “the store” .The claimant declined this offer when Mr Warke confirmed that a grievance hearing would be held. The claimant said he would wait for this. 

26)	Mr Warke wrote to the claimant on 27 July 2015 confirming that he had been summarily dismissed for gross misconduct, namely that “from 17 June until 17 December 2014, you intimidated, bullied and harassed a female night shift colleague, AK”. He advised the claimant of his right to appeal, that 21 July 2-15 was his last date of employment and pay arrangements. Mr Warke then went on to address the points raised in the claimant’s grievance which he stated had been taken into consideration when making his final decision. In summary, the claimant’s grievance was not upheld, except that it was confirmed that contact with a suspended employee would normally be maintained every two weeks and that he would make a recommendation that this should be followed up with the Antrim store.

27)	The claimant gave notice of and set out his grounds for appeal in letters dated  and 30 July 2015. The appeal hearing was held on 8 September 2015 conducted by Mr Simon Walsh General Store Manager, Dundonald. The claimant was accompanied by Ms Lafferty. Mr Walsh informed the claimant that he did not intend to reinvestigate the incident but to deal with each of the grounds of appeal raised by the claimant in his appeal letters. The claimant and his representative made representations in relation to each ground of appeal as follows:
 
a)	That timescales and procedures were not adhered to. The claimant submitted that he and his family were caused a lot of stress as the period of suspension from December 2014 until the decision to dismiss was excessive. Also he was not contacted every 2 weeks to review the suspension. This suggested to the claimant that the outcome had been pre empted.

b)	That the decision was too harsh. The claimant suggested that he had not been given an opportunity to raise mitigating circumstances. His union representative stated that the decision should be put into the context that the claimant and AK had got along well, that they had arranged to meet as adults, sat and talked and nothing had happened; the claimant had then sent AK text messages out of anger and had apologised for that; that there had been a fall out between the claimant and AK but what happened outside of work was none of the company’s business; that AK’s complaint against the claimant was being dealt with together with her complaints against her other two colleagues rather than being dealt with individually. She submitted that the claimant should be reinstated.

c)	That the hearing was prejudged due to comments made by Roy Warke. The claimant sought clarification as to who had made the decision to dismiss him- was it Mr Martin or Mr Warke. When Mr Walsh confirmed that Mr Martin had made the decision, the claimant submitted that the decision to dismiss him had been made on incomplete evidence as Mr Martin had indicated at the adjourned hearing on 4 June 2015 that he had further questions for the claimant which had never been put to him before the decision was made.

d)	That the claimant’s grievance had not been take into account or discussed. The claimant also pointed out that a separate grievance had not been held to decide his grievance and therefore correct process had not been followed.

e)	That too many managers were involved and the change in personnel. The claimant complained that the reason why Mr Martin had been replaced had not been explained to him.

f)	The only evidence gathered was in support of AK. It had been omitted from the findings that AK had accused the claimant wrongly of having told her fiancé that she was cheating on him. He had only heard that she had cheated on him with someone in the store. It was suggested that some of AK’s messages had been deleted. 

28)	Following an adjournment to consider the appeal, Mr Walsh concluded that while the process “should have been shorter there were some unavoidable issues which could not be pre-empted”; that a recommendation would be made to the Senior Manager of People that the suspension policy and timescales be “re-briefed” to Management; that by the claimant’s own admission he had sent messages which were so offensive to another colleague that she felt unable to return to work, which fell under intimidation, bullying and harassment as defined under the policies; the outcome had not been prejudged by Mr Warke as he had delivered the decision made by Mr Martin on 11 June 2015; Mr Warke had given the claimant the opportunity of making points in relation to his grievance but he had not done so and in any event all of the grievance points were covered in the outcome letter dated 27 June 2015; Mr Warke became involved because Mr Martin had left the business; and finally there was no evidence that messages were removed or altered to support the evidence against the claimant. Mr Walsh was of the view that a full and thorough investigation had been carried out. On this basis Mr Walsh informed the claimant that his dismissal for intimidation, bullying and harassment, which amounted to gross misconduct was to be upheld. This was confirmed to the claimant by the appeal outcome letter dated 9 September 2015. 

29)	The Managers involved in the investigatory and disciplinary process were not aware that the claimant suffered from a generalised anxiety disorder and they were not provided with a copy of his personnel file or the occupational health report. At no stage during the investigatory or disciplinary process did the claimant or his representative ever make any representations to the respondent that he suffered from a disability or that he required reasonable adjustments to be made for him during the process. The alleged disability and need for reasonable adjustments was not mentioned by the claimant either in his grievance or appeal letters. 

30)	The claimant lodged his complaints of unfair dismissal and disability discrimination with the Office of Industrial Tribunals and the Fair Employment Tribunal. It was disputed by the respondent that the claimant was unfairly dismissed or that he had been subjected to unlawful disability discrimination. The respondent disputed that the claimant had a disability within the meaning of the DDA.

The Law

7.	Article 130 of the Employment Rights Northern Ireland Order 1996 provides:-

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

(b)	that it 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”.

Article 130 (4) provides: 

“(4)	Where the employee has fulfilled the requirement for paragraph one, 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 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”.

The Court of Appeal considered the approach an Employment Tribunal must take when considering the fairness of a misconduct dismissal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47, approving the decision in  Dobbin  v  Citybus Ltd [2008] NICA 42 in which it was held:

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLc (formerly Midland Bank) –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 [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another; 

(5)	the function of an 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 Home 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, it 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”.

Article 130A (2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-

“Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.

In Software 2000 Ltd v Andrews [2007] IRLR 568 EAT, the EAT held that in the Article 130(4) “exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel”.  There are five possible conclusions that a tribunal may reach, according to Mr Justice Elias. Firstly, the evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction.  Secondly, the employer may show that if fair procedures had been complied with, the dismissal would have occurred in any event.  The dismissal will then be fair in accordance with Article 130(A).  Thirdly, the tribunal may decide there was a chance of dismissal but that it was less than 50%, in which case compensation should be reduced in accordance with the Polkey principles.  Fourthly the tribunal may decide that employment may have continued, but only for a limited period.  Finally the tribunal may decide that the employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case.  Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.

The tribunal considered the following case law:- Foley v Post Office; HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA; Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23; Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47; Dobbin  v  Citybus Ltd [2008] NICA 42;  Iceland Frozen Foods -v- Jones 1983 ICR17; British Homes Stores -v- Burchell 1978 IRLR 379 EAT; W Weddel and Company Limited -v- Tepper 1980 IRLR96; Polkey -v- A E Dayton Services Limited 1987 IRLR 503; Ulsterbus Limited v Henderson 1989 IRLR 251 NICA; Trusthouse Forte (Catering) Limited v Adonis 1984 IRLR 382; LJ Sewell and J Francis v Ford Motor Co 1973 IRLR 25; W Devis & Sons Ltd v RA Atkins 1977 IRLR 314; CEX Limited v Mark Lewis 2007 UKEAT/0013/07; Software 2000 Ltd v Andrews 2007 IRLR 568 EAT.

The tribunal had regard to the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures.  Failure by an employer to observe any provision in the Code does not of itself make the dismissal unfair, but may be taken into account by a tribunal when deciding whether the employer acted reasonably in dismissing an employee.  The Code sets out the “Core principles of reasonable behaviour” which are to use procedures primarily to help and encourage employees to improve/modify behaviour rather than just as a way of imposing a punishment; Inform employees of the complaint against them in advance of a meeting, and provide them with an opportunity to state their case before decisions are reached; Allow employees to be accompanied at disciplinary meetings; Make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances; Never dismiss employees for a first disciplinary offence, unless it is a case of gross misconduct; Give employees a written explanation for any disciplinary action taken and make sure they know what improvement is expected and how it will be monitored; Give employees an opportunity to appeal if they are unhappy with the decision or outcome; Deal with issues reasonably and without unnecessary delay; Act consistently 

Disability 

8.	The meaning of “disabled person" is set out in Section  1 of the Disability Discrimination Act 1995 (hereinafter called the DDA) which provides that:-

“(1)	Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
 
(2)	In this Act "disabled person" means a person who has a disability.”
 
Section 2 of the DDA provides in relation to past disabilities:-

“(1)	The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability. ...
 
(4)	In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time. ...
  
(5)	The relevant time may be a time before the passing of this Act”.
 
Section 3 of the DDA enables the Secretary of State to issue guidance about the matters to be taken into account in determining a number of issues likely to arise in disability discrimination cases, including whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or whether such an impairment has a long-term effect.
 
Section 3(3) of the DDA provides that  a tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.

Paragraph 4(1) of Schedule 1 to the DDA provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following:- 
 
(a)	mobility;

(b)	manual dexterity;

(c)	physical co-ordination;

(d)	continence;

(e)	ability to lift, carry or otherwise move everyday objects;

(f)	speech, hearing or eyesight;

(g)	memory or ability to concentrate, learn or understand; or

(h)	perception of the risk of physical danger.

The tribunal considered the following case law:- Morgan v Staffordshire University [2002] IRLR 190 EAT; Hospice of St Mary of Furness v Howard [2007] IRLR 944; Abadeh v British Telecommunications PLC [2001] IRLR 23 EAT; Goodwin v Patent Office [1999] ICR 302 1999 IRLR 4 EAT; ChacÓn Navas v Eurest Colectividades SA [2006] IRLR (ECJ), C-13/05.

9.	Conclusions

Unfair Dismissal

1)	The tribunal was satisfied that the respondent had complied with the statutory dismissal procedure and therefore went on to consider the fairness or otherwise of the claimant’s dismissal pursuant to Article 130 and 130A of the 1996 Order as amended.

2)	The tribunal was further satisfied that the respondent had established that the reason for the claimant’s dismissal was related to his conduct and for no other reason. The reason for the claimant’s dismissal was therefore potentially fair. 

3)	Therefore the tribunal had to determine whether the dismissal was fair or unfair within the meaning of Article 130(4) and whether the decision to dismiss the claimant did fall within the band of reasonable responses which a reasonable employer might have adopted, mindful that it is not for the tribunal simply to substitute its own view of what a reasonable course of action might have been. 

4)	The claimant complained of delay in completing the process and inconsistency by the respondent between its treatment of the claimant and that of CN, who had allegedly become aggressive towards AK at the Christmas function. The tribunal took into account that the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures provides that a reasonable employer will deal with issues reasonably and without unnecessary delay and act consistently. It took into account that a failure to adhere to these standards can render a dismissal procedurally unfair. However the Tribunal did not accept that the respondent had acted inconsistently in not instituting disciplinary investigation against CN as AK had raised no complaint to the respondent about him. It was accepted that the disciplinary process took a lengthy time to complete and the tribunal considers that the circumstances including the seriousness of the allegations made by AK, the number of witnesses and a change in personnel and operational reasons, had all contributed to the delay in bringing the process to a conclusion. The tribunal also took into account that on six occasions meetings were rescheduled at the claimant’s request. The tribunal therefore did not accept that the delay involved resulted in unfairness to the claimant.

5)	The tribunal is clear that it was Mr Martin who made the decision to dismiss the claimant and this was simply to be communicated to the claimant by Mr Warke, as he stated himself during the appeal hearing.  However he did not do this.  He purported to make his own “findings” in relation to the conduct of the claimant that he had from “17 June until 17 December 2014, intimidated, bullied and harassed a female night shift colleague” which resulted in her “feeling unsafe in the workplace over a period of six months” which is plainly wrong. It was accepted by all of the respondents’ witnesses that the claimant’s misconduct occurred only throughout the shorter period during   December 2014. The tribunal rejected the contention that Mr Warke provided an “additional safeguard in the disciplinary process” as he plainly disregarded representations made by the claimant that he had not been present in the workplace from June until September 2014.  It is therefore understandable that the claimant formed an impression that the allegations against him had been linked to those of his colleagues against whom more serious allegations had been made and that his case had been “prejudged”. Further it appears that on the earlier date Mr Martin made his decision to dismiss the claimant apparently before he had concluded his own investigations and contrary to his agreement to adjourn the disciplinary 
meeting. The Tribunal considers that these matters potentially gave rise to unfairness in the dismissal process. 

6)	The tribunal went on to consider the respondent’s submission that had the respondent followed a fair procedure the claimant’s dismissal would have occurred in any event.

7)	The tribunal accepted that Mr Martin had made his decision to dismiss the claimant based solely upon the actual conduct of the claimant. His contemporaneously recorded reasons refer only to the Facebook messages sent and the use of social media by the claimant. Following the reasoning in the Software 2000 Limited v Andrews case cited above, the tribunal in this case concluded that there was more than 50% chance that the claimant would still have been dismissed had a fair procedure been followed. The tribunal considers that Mr Martin had reasonable grounds to believe that the claimant was guilty of gross misconduct. The respondent’s Discipline and Grievance and Social Media policies give clear examples of how the use of social media outside working hours can amount to serious harassment discrimination or bullying of other colleagues amounting to gross misconduct. The policies set out explicitly that gross misconduct will most likely attract the penalty of summary dismissal. The claimant admitted to sending extremely vulgar and insulting Facebook messages to AK which clearly referenced sexual activity which had allegedly occurred between her and other colleagues in the workplace. The tribunal considered that the claimant and his trade union representatives in fact did make the representations about mitigating circumstances to Mr Martin and again at the appeal stage, including that AK had provoked the claimant and that he had apologised to her. These were considered by Mr Martin and he clearly decided that summary dismissal was an appropriate penalty in the circumstances.  

8)	The tribunal is mindful that it cannot substitute its own view of what the disciplinary outcome should have been and considers that in the present case summary dismissal was within the limits of the range of responses open to Mr Martin and as confirmed upon appeal. Therefore it follows that the dismissal is fair in accordance with Article 130(A)(2) of the 1996 Order.

Disability Discrimination

9)	In deciding whether a person has a disability within the meaning of the Act, the tribunal must address the four questions set out in the case of Goodwin  v  The Patent Office 1999 IRLR 4, namely:-

a)	Does the claimant have an impairment which is either mental of physical?

b)	Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 Paragraph 4(1) of the 1995 Act and does it have an adverse effect?

c)	Is the adverse effect substantial?

d)	Is the adverse effect long term?

10)	The onus is on the claimant to prove that he has or had a disability within the meaning of the 1995 Act at the time of the alleged discriminatory act which gave rise to his complaint (the relevant time).  The respondent disputed that the claimant had such a disability.

11)	 The tribunal accepted that the claimant’s generalised anxiety disorder as referred to his GP records may be capable of falling within the definition of an impairment as contained in guidance issued by the Secretary of State under section 3 of the Disability Discrimination Act 1995, as amended. This provides guidance about matters to be taken into account in determining whether a person is a disabled person. Paragraph A6 states that  disability can arise from a wide range of impairments which can be ….mental health conditions and mental illnesses, such as depression, schizophrenia, eating disorders, bipolar affective disorders, obsessive compulsive disorders, as well as personality disorders and some self-harming behaviour..”.

12)	However the tribunal considered that although the GP notes and records were relevant evidence insofar as it enabled the tribunal to find that the claimant did have an impairment, namely generalized anxiety disorder as at 31 January 2014 they did not reveal the onset of this disorder nor that it was continuing or if not likely to recur at the time of the discriminatory acts complained of by the claimant. Nor could they be relied upon to prove the other requisite “ingredients” of a disability within the meaning of the DDA.   The Occupational Health report relied upon by the claimant did not address any of these issues.  The claimant did not provide any other medical evidence in order to support his contentions that his generalised anxiety disorder had substantial and long term adverse effects on his ability to carry out normal day to day activities.  Further the claimant’s own evidence as to how his impairments adversely affected his ability to carry out day-to-day activities was rather vague and non-specific.  The tribunal considered that the medical evidence, which was available, did not corroborate the claimant’s own evidence in relation to how  his generalized anxiety disorder affected him and his ability to carry out day to day activities.  The tribunal therefore considered that the claimant did not discharge the burden upon him to show on a balance of probabilities that he had a disability within the meaning of the DDA at the relevant time. Therefore the tribunal is not required to determine the issue relating to the alleged failure by the respondent to make reasonable adjustments for the claimant. 

13)	The tribunal finds that the claimant’s claims of unfair dismissal and disability discrimination are not well founded and his claims are dismissed in their entirety.

Employment Judge:

Date and place of hearing:  19-21 September 2016, Belfast.

Date decision recorded in register and issued to parties: