Scott vs First Trust Bank
| Jurisdiction | Northern Ireland |
| Judgment Date | 04 July 2008 |
| Docket Number | 00167/05IT |
| Court | Industrial Tribunal (NI) |
| Respondent | First Trust Bank |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 219/08
167/05
CLAIMANT: Gary Scott
RESPONDENT: First Trust Bank
DECISION
The unanimous decision of the tribunal is that
(i) The claimant’s claim in respect of unlawful deductions from wages has been brought within the prescribed time;
(ii) The claimant’s claim in respect of unlawful deductions from his wages from the period from 15 October 2004 until 23 July 2007 is well founded;
(iii) If the parties cannot agree the amount of the deductions at (ii) above, the matter will be re-listed before the tribunal for a hearing on remedy;
(iv) The claimant’s claims under the disability Discrimination Act 1995 are dismissed.
Constitution of Tribunal:
Chairman: Mr Buchanan
Members: Ms Hamilton
Mr Fields
Appearances:
The claimant was represent by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr F O’Reilly, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.
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1. |
(i) |
The claims brought by the claimant were consolidated by an Order of the Tribunal made on 14 March 2008. |
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(ii) |
They involved allegations of breach of contract, unlawful deductions from wages, disability-related discrimination and a breach of the duty to make reasonable adjustments under the Disability Discrimination Act 1995, as amended.
At the hearing the respondent took a time point in relation to the claims of breach of contract and unlawful deductions from wages, though such a point had not been raised at a Case Management Discussion on 13 June 2007 which had been held to identify the issues to be determined by the tribunal and to list the case for hearing. The claimant was not cross-examined on time issues at the hearing. We are satisfied that the claim for unlawful deductions, relates to a series of ongoing deductions and that it has been brought within the prescribed time. |
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2. |
(i) |
In order to determine this matter the tribunal heard evidence from the claimant, Mr Scott, and from Mr Robin Bell, his staff representative and a member of the executive committee of the Irish Bank Officials’ Association. Mr Kieran Bennett, a senior official of the respondent Bank gave evidence on its behalf. At the relevant time he was the respondent’s Head of Retail Banking.
The tribunal also had regard to documentary evidence submitted by the parties. |
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(ii) |
It finds the facts set out in the following paragraphs. These facts are not really in dispute and can be stated shortly. |
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3. |
(i) |
The claimant started work with the respondent Bank on 17 September 1973. He was ultimately dismissed from his employment on 23 July 2007. (There is no claim for unfair dismissal before the tribunal, and we are not therefore concerned with the circumstances of his dismissal.) |
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(ii) |
At the relevant time, the claimant was working as a Lending Officer at the Bank’s branch in Newtownards.
On 9 February 2004 the claimant was suspended on full pay pending the outcome of investigations into cash irregularities at the branch.
Mr Scott accepted in cross-examination that there was evidence – principally CCTV footage – which showed him stealing money from the bank. This appears to have been aberrational behaviour on his part, at a time when he was under great stress in his personal life. |
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(iii) |
The claimant was suspended under the provisions of the bank’s disciplinary procedures, which had been agreed with the trade union.
The disciplinary procedure provided that a “[b]ank official shall not be subject to summary dismissal. Summary action, such as immediate suspension from duty, may be taken where the circumstances warrant it …”. |
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(iv) |
There was no express term providing for suspension without pay. Consequently, the claimant’s suspension took effect on full pay, and he remained suspended on full pay until 15 October 2004. |
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(v) |
The provision in the disciplinary procedure, set out above, which made no express provision for suspension without pay during the investigatory stage of the disciplinary process, is to be contrasted with the available disciplinary penalties following a determination of misconduct or wrongdoing.
These provide for possible “[s]uspension with or without pay”. |
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4. |
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
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On the day of his suspension, 9 February 2004, the claimant was admitted to a psychiatric ward at Knockbracken. He was there until 17 February 2004, when he was transferred to a similar ward at Ards Community Hospital. He remained there as an in patient until 26 February 2004.
In the period from 9 February 2004 (the date of suspension) until 15 October 2004 (when suspension on full pay was ended) various letters were exchanged between the parties concerning the claimant’s ability to take part in the disciplinary process. He indicated that following medical advice, he was unable to take part in the disciplinary process.
In July 2004 the bank asked the claimant to provide sickness certificates. By letter of 4 August 2004, the claimant replied referring to the bank’s letter of 9 February 2004 suspending him on full pay and stating that he did not understand why, in such circumstances, he was being asked to provide sickness absence certificates.
Medical reports were also provided to the bank by Dr McCrea on 20 August 2004 and 3 September 2004 stating that he was unable to be of assistance... |
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