Mr WX vs North West Regional College
| Jurisdiction | Northern Ireland |
| Judgment Date | 07 August 2019 |
| Docket Number | 06766/17IT |
| Court | Industrial Tribunal (NI) |
| Respondent | North West Regional College |
THE INDUSTRIAL TRIBUNALS
CASE REF: 6766/17
CLAIMANT: Mr WX
RESPONDENT: North West Regional College
DECISION
The decision of the tribunal is that the claimant’s claim is dismissed.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Ó Murray
Members: Mr N Jones
Mr M McKeown
APPEARANCES:
The claimant was represented by Mr R Donaghy, Barrister-at-Law, instructed by Mr Quigley of Madden and Finucane Solicitors.
The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by Ms McAloon of Worthingtons Solicitors.
THE CLAIM
1. The claimant claimed unfair dismissal. The respondent’s case was that the claimant was fairly dismissed for gross misconduct.
2. As this case involves allegations of a sexual offence we have, in accordance with Rule 49 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 (as amended) omitted from this decision any identifying matter in relation to those affected by those allegations ie the claimant, the complainant and the witnesses who did not give evidence to us but are referred to in this decision. The register and hearing list will be similarly anonymised.
3. The parties will be given an opportunity to make any application for a variation of these orders or for further anonymization or redaction in order to comply with Rule 49. For this reason this decision is issued to the parties on 7 August 2019 but will be kept from the register for a period of 28 days from the date of issue that is until 4 September 2019 pending any such application. A Restricted Reporting Order (under Rule 50) will also issue with this decision for the same 28 day period pending any such applications ie it will expire on 4 September 2019 unless it is varied, extended or revoked.
THE ISSUES
4. The issues for the tribunal were as follows:-
(i) Whether the claimant was unfairly dismissed for gross misconduct, whether the respondent believed that the claimant was guilty of the misconduct alleged and whether there were reasonable grounds to sustain that belief following a reasonable investigation;
(ii) Whether the process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances;
(iii) Whether the decision to dismiss was fair or unfair in accordance with equity and the substantial merits of the case;
(iv) At the outset of the hearing, the parties agreed that issues of pension loss compensation would be dealt with, if necessary, at a separate hearing. It was however agreed that issues relevant to contributory conduct were to be dealt with at this hearing as were Polkey issues.
(v) The claimant claimed reinstatement or in the alternative compensation.
SOURCES OF EVIDENCE
5. The tribunal had the written statements and oral evidence from the witnesses listed below together with the documentary evidence in an agreed bundle which ran to over 700 pages. The parties stated that the bundle had been produced from a bundle of discovery amounting to 7,000 pages.
6. For the claimant the following gave evidence:
(i) The claimant;
(ii) Mr D a student;
(iii) Mr A Donaghy a trade union representative.
7. For the respondent the following gave evidence:
(i) Dr Laverty who led the investigation;
(ii) Ms S Trainor who with Dr Laverty dealt with the investigation.
(iii) Dr Kinnaird who compiled a report on the procedure adopted;
(iv) Mr Finnegan of the sub-committee of the Board of Governors that dealt with the disciplinary hearing.
(v) Mr Canavan of the Board of Governors being the body which took the decision to dismiss.
(vi) Mr Corrigan of the independent appeal panel which determined the appeal. Mr Corrigan did not provide a witness statement but spoke to the appeal panel’s report.
THE LAW
8. The right not to be unfairly dismissed is enshrined in the Employment Rights (NI) Order 1996 (as amended) referred to in this decision as 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) which states:
“(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason show by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case”.
9. The task for the tribunal in a misconduct dismissal case is set out as follows in 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”.
10. The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the tribunal in a misconduct dismissal case. The test is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances. This assessment applies to both procedure and penalty.
11. The case of Connolly v Western Health and Social Care Trust [2017] NICA states as regards dismissal for gross misconduct for a first offence:
“[22] The decision is whether or not a reasonable employer in the circumstances could dismiss bearing in mind ‘equity and the substantial merits of the case’. I do not see how one can properly consider the equity and fairness of the decision without considering whether a lesser sanction would have been the one that right thinking employers would have applied to a particular act of misconduct. How does one test the reasonableness or otherwise of the employer’s decision to dismiss without comparing that decision with the alternative decisions? In the context of dismissal the alternative is non dismissal i.e. some lesser sanction such as a final written warning.
[23] The authority for the Tribunal’s statement given in Harvey, Industrial Relations at paragraph [975] is the decision of the Court of Appeal in England in British Leyland UK Limited v Swift [1981] IRLR 91. Lord Denning MR said the following at p. 93:
“The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said:
‘… A reasonable employer would in our opinion, have considered that a lesser penalty was appropriate’.
I do not think that that is the right test. ...
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