THE INDUSTRIAL TRIBUNAL

CASE REF:  246/07

CLAIMANT:		Sharon Kennedy

RESPONDENTS:	1.  Ashfield IN2FOCUS Limited
			2.  Andy Dussroth
			3.  Chris Corbin

DECISION

The second and third respondents are dismissed from the proceedings on the application of the respondent with the consent of the claimant.

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The respondent is to pay the claimant compensation of £19,677.20 subject to the recoupment provisions.

Constitution of Tribunal

Chairman:		Mrs Watson

Panel Members:	Mrs Cummins
Mr Grant

APPEARANCES

The claimant was represented by Mr John Doran, of Doran McCoy Steele, Solicitors.

The respondent was represented by Ms Amy Summers, Commercial Solicitor, employed by the respondent.

(1)	ISSUES

(A)	The issue to be determined by the tribunal was whether the dismissal of the claimant by the respondent for gross misconduct was fair in all the circumstances.  The respondent had brought disciplinary charges against the claimant and dismissed her for gross misconduct after she had pleaded guilty to a driving offence arising from an accident in which she was involved.  The claimant disputed that the respondent had conducted the investigation and disciplinary process, which had lead to her dismissal, fairly or reasonably.

(B)	As a preliminary point, the respondent applied to the tribunal to dismiss the second and third respondents from the proceedings since they were not employers of the claimant.  The claimant consented to the application.  The tribunal dismissed the second and third respondents from the proceedings.

(2)	SOURCES OF EVIDENCE

2.1	The tribunal heard evidence from the claimant.  Mr Andy Dussroth who is presently Head of Operations with the respondent, gave evidence for the respondent.  He had held the disciplinary meeting with the claimant and took the decision to terminate the claimant’s employment.  .

2.2	The respondent provided the tribunal with a bundle of documents that had previously been sent to the claimant’s representative.  As well as all the pleadings in the case, the bundle contained the documentation arising from the respondent’s investigation of the disciplinary matters, the source of the information that Mr Dussroth referred to as the basis of his decision. Both representatives provided written submissions subsequent to the hearing.

2.3	Mr Dussroth had also provided a Witness Statement which caused the tribunal great concern because much of the material referred to and contained in the Bundle, had not been prepared by him.  For example, Matthew Neiland, employed at that time by the respondent as a Commercial Solicitor, prepared Attendance Notes of telephone calls he made to a witness to the accident and the police constable who had prepared the prosecution file.  The note of the call with the police constable contained Mr Neiland’s interpretation of the constable’s interpretation of a report by the police Telecom Liaison Unit and the Forensic Science Laboratory.  At best this evidence is third hand and not best evidence.  It was also potentially highly prejudicial to the claimant.  The tribunal therefore had concerns about this document, as did the claimant’s solicitor, but admitted the statement as it was relevant to the issues for its determination and necessary for the tribunal to understand the reason for the decision taken by this witness.

In giving his evidence, Mr Dussroth was clearly making every effort to give an honest and truthful account of his role in the proceedings and accepted, with hindsight, that perhaps he should have done things differently with regard to the investigation. 

(3)	FINDINGS OF FACT

3.1	The respondent company provides teams of medical sales representatives to the pharmaceutical industry throughout the United Kingdom.  The claimant began her employment with the respondent as a medical sales representative on 17 June 2002.  She was dismissed with effect from 8 November 2006. During this employment, the claimant had been a high performing part of the team selling products manufactured by the Bayer Company, mainly to General Practitioners, in Northern Ireland.   This involved driving some 36,000 miles per year.  The claimant had been driving for over 25 years.

3.2	On 3 March 2006, the claimant was involved in a traffic accident.  While crossing the A1 carriageway, coming out of the Dromara turn off and turning right towards the Hillsborough roundabout, the claimant’s car was in collision with another car carrying four people travelling in the direction of Newry. 

3.3	The claimant and the four people in the other car were all taken to the Royal Victoria Hospital.  The tribunal was not provided with confirmation of the nature or extent of any of the injuries sustained but was satisfied that none of the injuries was life threatening.  Nor was the tribunal provided with details of the damage to both cars but we were informed that damage was extensive and that the claimant had to be cut from her car.  The respondent’s insurers informed them that they had estimated that the total costs of settlement of all claims arising from the accident would be almost £400,000. 

3.4	The claimant gave evidence that she had been unconscious after the crash and in extreme pain.  She was discharged from hospital later that day on strong analgesic medication.  After nearly three weeks, further examination of her x-rays disclosed a fractured pubic bone and torn ligaments.  The claimant was unfit for work and was receiving physiotherapy treatment for about three months.  

3.5	The claimant was fit to return to work from on or about 20 June 2006 but the respondent company had become aware from their insurers that police enquiries into the accident were ongoing and that no decision had been taken regarding prosecution at that time.  The claimant’s line manager, Doug Baxter, spoke to the claimant and subsequently wrote to her on 21 June 2006 to inform her that she was suspended from her duties from that date. 

3.6	The letter included the information that the suspension was not a disciplinary sanction, that the claimant would continue to be paid and that the company would carry out a full investigation into the car accident.  The claimant would be advised of the outcome of the investigation and might be invited to attend a disciplinary hearing in accordance with the company’s disciplinary procedure.

3.7	The respondent wrote again to the claimant on 2 August 2006 ending the period of suspension but reserving the right to “take disciplinary action or any other appropriate action in the future should anything further come to light in respect of the incident involving your company vehicle which suggests you were in any way to blame for and or contributed to this recent accident.”

3.8	During this period that the claimant worked after the accident, her performance was praised by the Bayer National Sales Manager who sent her and her line manager, Doug Baxter, an email noting excellent sales, her best ever,  for that month.

3.9	The respondent had been informed by their insurers that a witness, who had been turning left into the road from which the claimant was trying to exit, had stated that he had seen the claimant’s car waiting at the road junction.  The witness believed he saw the claimant holding a mobile phone to her ear while sitting at the junction.

3.10	The claimant appeared at Lisburn Magistrate’s Court on 19 September 2006 where she was charged with driving without due care and attention contrary to Article 12 of the Road Traffic (Northern Ireland) Order 1995.  She pleaded guilty to the charge, on advice from her solicitor and barrister, and was fined £250 and given 7 penalty points on her licence.  As she already had 3 penalty points on her licence, this brought her total to 10.  The claimant was not disqualified from continuing to drive.

3.11	The respondent was informed by its insurers on 26 September 2006 that the claimant was being prosecuted in relation to the accident but it was not until 29 September 2006 that the claimant spoke to Laura Billing, a Human Resource Manager with the respondent.  The claimant informed Ms Billing that she had been advised to plead guilty to the charge as a consequence of her having no recollection of the circumstances of the crash and in the hope of getting 3 penalty points and a fine.  The claimant informed Ms Billing that because the penalty imposed was greater than anticipated, she intended to speak to her solicitor to discuss the possibility of appealing.  

3.12	By a letter dated 9 October 2006, the respondent confirmed an earlier message from Doug Baxter to the claimant that she was suspended from her duties on the same terms as previously, with effect from 4 October 2006.  The letter also stated that a thorough investigation had been conducted and invited the claimant to attend a disciplinary interview on 12 October 2006.

3.13	The purpose of this meeting was stated to be to ‘consider the following issues’ which are then listed;

Allegation 1:  Negligent misuse of your Company Vehicle.

Allegation 2: Misuse of Company Equipment.

Allegation 3: Major Breach of the Company Fleet Policy and Manual.

Allegation 4: Any action likely to bring the Company into Disrepute.

3.14	There were several documents enclosed with the letter which were described as setting out the result of the ‘full’ investigation of the facts surrounding these above ‘issues’ and which would be used at the hearing.  The letter then set out the essential features of the hearing and its possible outcome including the advice that action taken following an adverse finding could include dismissal. 

3.15	The hearing did not proceed on that date as planned.  The respondent took the opportunity thereby afforded to carry out further investigation into the accident. Matthew Neiland, a Commercial Solicitor employed by the respondent, appears to have done most of this work, speaking to Police Constable McCann who had been the Investigating Officer and others, and obtaining mobile phone records.  The tribunal considered this ‘investigation’ to have been less than thorough or impartial and from the material provided, concentrated solely on matters relating to the claimant’s alleged use of her mobile phone.  Mr Neiland prepared telephone attendance notes of his conversations and secured mobile phone records which subsequently formed a significant element of the respondent’s disciplinary documentation.  The tribunal noted that Mr Neiland did not obtain the report of the expert examination of the claimant’s mobile phone, Item 34 of the Police Schedule of Non Sensitive Material, which Constable McCann informed him had been obtained to assist his investigation for the Public Prosecution Service.

3.16	The tribunal would also have expected the investigators to have contacted the claimant’s solicitor and/or barrister about the nature of the offence with which the claimant had been charged, the prosecution case presented to the Magistrate and the reason for the legal advice they had given the claimant.  The claimant subsequently provided a letter from her barrister which included the information that the charge of driving without due care and attention is the least serious charge in such situations, that the Magistrate may still disqualify a driver on this charge but chose not to do so in this case, that the charge  covers a broad range of factual situations which may include a simple error of judgement  and that the prosecution opened the case ‘on the basis that this incident was simply an unfortunate accident’.

3.17	One of the statements included in the prosecution papers was from Constable Peter Lilburn who was with Constable McCann when the claimant was interviewed ‘in relation to an allegation of dangerous driving causing GBI’.  Mr Dussroth mistakenly thought this meant that the claimant had originally been charged with this more serious offence.  The tribunal found as a matter of fact that these matters should have formed part of the initial investigation and the failure to do so unfairly disadvantaged the claimant.

3.18	The tribunal was provided with the documentation relating to this investigation as it was contained within the Bundle of documents agreed by the parties.  As stated above at paragraph 2.13 above, the tribunal considered the admissibility of some of the material contained in or annexed to Mr Dussroth’s Witness Statement.  The tribunal found the material was admissible as it was relevant to the issue for determination but, as the parties were informed at the hearing, the tribunal reserved consideration of the weight to be given to the content which was rarely first hand evidence.

3.19	As a result of this investigation, the respondent decided to change the disciplinary allegations and to replace the claimant’s line manager, Doug Baxter, Regional Business Manager, with Andy Dussroth, Head of Sales Operations.  The personnel change was stated to have been because of the serious nature of the new allegations, the potential precedent that the outcome might set for the company, the seniority of Mr Dussroth’s position and his position as the Chair of the respondent’s Fleet Committee.

3.20	The respondent wrote to the claimant and invited her to attend a disciplinary hearing on 30 October 2006.  She was informed that new evidence had come to light and the focus of the hearing was now the alleged major breaches of the Company’s Fleet Policy and the alleged misuse of the Company vehicle. 

3.21	The revised allegations were:

"Allegation 1: Major breaches of the Company’s Fleet Policy and Manual “It is alleged that you breached your Contract of Employment by breaching the Company’s Fleet Policy.  Under paragraph 9.10 of the Fleet policy it states that “The use of mobile phones is prohibited whilst driving, and this included the use of hands-free sets.  All employees should turn off their phones whilst driving.  Again, breach of this requirement may result in disciplinary action up to and including dismissal.”  The first page of the Policy outlines that the Policy forms part of your Contract of Employment and it is a condition that you comply with its terms.  The allegation is that at the time of, or just prior to, the accident on 3 March 2006, you were using your mobile phone in direct breach of the Company Fleet Policy and manual.

It is also alleged that you breached your Contract of Employment by breaching the Company’s Fleet Manual.  Page 10 of the Fleet manual states “When driving your company vehicle you are an ambassador of the company at all times.  Consequently you are asked to drive safely and courteously, to be alert but not aggressive, always drive within the speed limits and allow plenty of time for your journey” ….The allegation is that at the time of the accident on 3 March 2006 you were not driving safely, thereby putting yourself and other drivers at risk.  As a consequence, you failed to act as an ambassador of the company.” 

Allegation 2: Negligent misuse of your Company Vehicle

It is alleged that on 3 March 2006 you were negligent in the use of your Company vehicle in that in relation to a serious road traffic accident on that date you were convicted of the offence of driving without due care and attention.  We understand that you pleaded guilty to this offence.  It is alleged that you were, at least in part, to blame for the accident in which you and 3 other people were seriously injured and 2 vehicles, including your Company car, were seriously damaged.  The Company has been advised that due to the serious nature of the accident we must set aside a minimum of £385,000 for personal injury, damage and legal costs.

Allegation 3: Any action likely to bring the Company into disrepute

It is alleged that your conduct, as outlined in the allegations above, had threatened not only the company’s good relationship with our client, Bayer, but also had endangered the Company’s and the client’s reputation.  It is alleged that your conduct has potentially led to a breakdown of trust and confidence.  Trust and confidence is fundamental to the employment relationship, and this is even more significant within the remote working environment of the Medical Sales Representative’s role. "

3.22	The letter enclosed the documentation to be used at the hearing. This included the Police Schedule of Non-Sensitive Material and Primary Disclosure documentation from the Public Prosecution Service.  The Schedule consists of a list of all documentation, including photographs, maps, topography of the scene plus the location of any item not provided, relating to this incident.  The latter documentation includes the Summons and all witness statements.  There were copies of two statements made by the claimant to the company, letters from her solicitor and barrister relating to the Court proceedings, mobile phone records of the claimant and one of the witnesses and the telephone attendance notes written by Mathew Neiland referred to above. 

3.23	The claimant was advised that she should submit any documentation on which she would rely prior to the hearing and that she would have an opportunity to give her explanations and put forward any mitigating factors at the hearing. 

3.24	The claimant submitted a response which questioned some of the information relating to the time of the accident and sought some further information. She denied using her mobile phone at the time of the accident and described the ‘extreme mental and physical anguish’ she had suffered. The ‘mental anguish’ referred to, was said to be due to the fact that the claimant could not remember the actual accident  Her evidence to the tribunal was that she had no memory of anything between sitting at the junction and being assisted while still in the car before being cut out. The tribunal found the claimant to be a credible and truthful witness in this regard and noted that she had great difficulty giving her evidence at times.

3.25	The claimant gave details in her response of her pain on her discharge from hospital, the prescribed medication, her physiotherapy plus the problems caused by the delay in diagnosis and appropriate treatment. The tribunal was not provided with medical reports but the respondent did not dispute her evidence. The claimant referred to her 25 year driving experience without an accident and to her barrister’s explanation that the offence with which she had been charged may include ‘a simple error of judgement or momentary inadvertence’ and was the least serious charge that could be brought. Her letter also queried the allegation that her actions had or could have damaged the respondent’s or Bayer’s reputation since no mention had been made to either of them during the proceedings in Court. 

3.26	The hearing took place at the respondent’s premises in England on 3 November 2006. Prior to this, Mr Dussroth studied the documentation from the investigation and prepared questions to ask of the claimant during the hearing.  The tribunal found that some of the proposed questions raised a strong possibility that Mr Dussroth, having read the material supplied to him, had already come to certain conclusions prior to the hearing not least the conclusion that the claimant had been using her mobile phone immediately prior to or at the time of the accident. 

3.27	The outcome of the hearing was contained in a lengthy letter to the claimant dated 7 November 2006 from Mr Dussroth in which he went through each allegation setting out the material he had considered in respect of each with his conclusions and the main reasons for each. In short, these were as follow;

Allegation 1 Major breaches of the Company’s Fleet Policy and Manual

Mr Dussroth relied on ‘the evidence of Alan Waugh’. Mr Waugh had made a statement to the police that he had seen the claimant using her mobile phone whilst she was waiting at the junction.  This had not been given in evidence at any hearing.  In Mr Dussroth’s view, this gave him reasonable grounds to believe that the claimant had been on her mobile phone whilst she was driving and therefore not driving safely and not acting as an ambassador of the Company, all acts in breach of the Fleet Policy and Manual.  He found this to be gross misconduct. 

Mr Dussroth said he also found it hard to accept the claimant’s claim that she could not remember making a phone call to her husband and this gave him further grounds to support his conclusion that her actions amounted to gross misconduct. 

Allegation 2 Negligent misuse of your company vehicle

The claimant had pleaded guilty to the charge of driving without due care and attention and had not appealed the conviction or charge.  As a consequence of her actions on that day, serious personal injury, damage and loss and a significant loss to the company with respect to its insurance premium had been resulted.  This negligence in the use of the company vehicle was found to amount to gross misconduct.

Allegation 3 Any action likely to bring the company into disrepute

In Mr Dussroth’s view, there was a real risk that both the company’s and Bayer’s name and reputation would suffer damage by being publicly linked with the accident and the claimant’s criminal conviction.  Her actions had threatened the company’s good relationship with Bayer.  The claimant’s actions on 3 March 2006 had ‘destroyed the trust and confidence that is vital to the employer/employee relationship’.  He accepted that neither the company’s nor the client’s name had been brought into disrepute, but her actions ‘were likely’ to have done so.  This action was found to amount to misconduct. 

Mr Dussroth concluded that the only appropriate penalty in the circumstances was summary dismissal on the grounds of gross misconduct.  The letter reminded the claimant of her right to appeal the decision and enclosed a copy of the Disciplinary Policy.

3.28	The claimant did not appeal the decision.  Her evidence to the tribunal was that she did not have confidence that the person who would have heard the appeal would have been sympathetic or likely to overturn the decision.  The tribunal  found that the claimant did not have a valid reason for failing to comply with this requirement.

3.29	For the avoidance of doubt, the tribunal would expect a reasonable employer to accept the findings of the Magistrates Court based on the expert investigation of the prosecuting authorities regarding the actions of the claimant on 3 March 2006.  However, once the respondent chose, for whatever reason, to conduct its own investigation, the tribunal would expect a reasonable employer to ensure their investigation was thorough and fair. 

(4)	THE APPLICABLE LAW 

4.1	Under Article 130 (1) of the Employment Rights (Northern Ireland) Order 1996, an employer is required to show that the reason for the dismissal falls within paragraph (2).  The reason in this case, relating to the conduct of the claimant, falls within paragraph (2) (b).

In order to determine whether the reason is fair, the tribunal must be satisfied that, in all the circumstances, the employer acted reasonably in treating it as a sufficient reason for dismissing the employee.  This is to be determined in accordance with equity and the substantial merits of the case.  [(Article 130 (4) (a) and (b)].

4.2	In reaching our determination, the tribunal has had regard to the requirement to consider whether the response of the respondent in the circumstances, was within the band of responses that a reasonable employer would take, the well known test laid down in Iceland Frozen Foods v Jones [1982] IRLR 439.  This test applies equally to the investigation of the suspected misconduct carried out by the employer. (Sainsbury’s Supermarket Ltd v Hitt. [2002] EWCR Civ. 1588)

4.3	For the respondent, Ms Summers submitted that the evidence given by Mr Dussroth clearly met the requirements of the test set out in British Home Stores v Burchill [1978] IRLR 379 which tribunals should apply when considering cases where misconduct is alleged.  The employer must demonstrate that he had a reasonable suspicion amounting to a belief of the guilt of that employee of that misconduct at that time.  In order to do so, the employer must establish three things;

(i)	He must establish the fact of that belief.

(ii)	He must show he had reasonable grounds for having that belief, and

(iii)	He must show that he formed that belief after having carried out as much investigation into the matter as was reasonable in all the circumstances.

(5)    CONCLUSIONS

5.1     The tribunal accept that Mr Dussroth, at the time he arrived at his decision to dismiss the claimant, believed that she had not acted in accordance with the requirements of the Terms and Conditions of her employment.   However, the tribunal are of the view that Mr Dussroth did not have reasonable grounds for that belief and that the investigation carried out was unreasonable and unfair to the claimant.

5.2	In arriving at his conclusions, Mr Dussroth relied on the investigation carried by Matthew Neiland and others employed by the respondent.  During his cross examination by Mr Doran, Mr Dussroth acknowledged that there were aspects of the investigation that he would have done differently had he been aware of the matters put to him by Mr Doran.  One example related to the Magistrates’ Court proceedings, specifically the reason why the claimant had been advised by her lawyers to plead guilty in the light of her loss of memory of the detail of the accident and  the fact that there is no appeal from a guilty plea. 

5.3	This point also demonstrates part of the problem the tribunal had with the investigation.  Mr Neiland, like Ms Summers, is a Commercial Solicitor so one may assume that, as Ms Summers acknowledged to the tribunal, he had little knowledge of criminal investigations and proceedings.  The claimant produced letters from her solicitor and barrister to the respondent but no contact was made to either of them to find out why the claimant had been given the legal advice she was regarding the plea and failure to appeal, matters which featured in the decision reached by Mr Dussroth.

5.4	Appended to Mr Dussroth’s Witness Statement was a sketch, based on the witness evidence taken by the police, which he had prepared of the scene of the accident to assist the tribunal.  In response to questions by the tribunal, Mr Dussroth stated that he had never been to the scene of the accident and that the tribunal hearing was his first time in Northern Ireland.  He had not been aware that the Police Schedule of Non-sensitive Material had a list of materials originated by their investigation which included a sketch of the scene prepared by a Mapping Officer, (Item 3), a topography of the scene, (Item 35), photographs of the scene, (Item 37) and two witness statements relating to these items (Items 18 and 19). 

5.5	Of greater concern to the tribunal was the failure by Matthew Neiland to request the report of the Telephone Liaison Unit regarding the claimant’s mobile phone and its use on 3 March 2006 even though he was told about it and was told Constable McCann’s interpretation of its content.  This was surprising as he investigated other aspects of this matter. Constable McCann informed Mr Neiland that the Forensic Science inspection of the claimant’s mobile phone confirmed that there had been ‘call activity’ around the time of the accident. The tribunal consider that this is not the same as saying that the claimant was using her phone at that time.  Her phone was found at the side of the road by Constable McCann who inserted the battery which had been dislodged by the impact.  The phone display showed that the last number dialled was that of the claimant’s husband, but that does not, as Mr Dussroth concluded, mean that the claimant herself had dialled that number.  The tribunal is aware that mobile phones can be activated accidentally or by extraneous factors such as impact.  The tribunal found that drawing such a conclusion in the absence of available expert opinion was unreasonable.

5.6	Similarly, Mr Dussroth stated in his conclusions relating to Allegation 1,

“I find it hard to accept your statement that you don’t remember making a phone call to your husband at this time because your other evidence suggests that you remember what you did up until the point when you were sitting at the junction of the A1, just prior to the accident.”

This suggests to the tribunal that medical advice regarding the claimant’s loss of memory would also have been of benefit to Mr Dussroth.

5.7	In the legal authorities relating to the investigation that is to be expected of a reasonable employer, the focus is more often on whether the investigation had been adequate.  The Northern Ireland Court of Appeal in Ulsterbus v Henderson [1989] IRLR 251 held that it was not incumbent on an employer to carry out a quasi-judicial investigation.  This view was followed in Santamera v Express Cargo Forwarding [2003] IRLR 273 which recognised that employers are unlikely in any event to be qualified to carry out such an exercise.  In this case, the tribunal have concluded that the employer did not recognise their limitations in this regard.  They believed their investigation was superior to that of the police, the authority with the facilities and expertise in investigating criminal matters.

5.8	The tribunal formed the view that the investigation carried out by the employer in this case was unfair.  The investigation of serious allegations of misconduct, including criminal misconduct, was not conducted in accordance with the requirements laid down in A v B [2003] IRLR 405 in that the focus of the investigation was solely on the evidence required to prove the charges against the employee rather than also seeking evidence which might exculpate or point towards the innocence of the employee.  

5.9	The tribunal then considered whether Mr Dussroth would still have drawn the conclusions he did and dismissed the claimant in the absence of the investigation material.  It was clear to the tribunal from the questions he drafted prior to the disciplinary meeting that he relied heavily on that investigatory documentation.  In his oral evidence, he stated on several occasions that with the benefit of hindsight, there were things that he would have done differently regarding the investigation.  If the respondent had accepted the outcome of the police investigation into the accident of 3 March 2006, this would have meant that the claimant would not have faced the charges she did.  She had not been prosecuted for use of her mobile phone whilst driving.  The respondent’s conclusion that she had done so is questionable as the tribunal have found it was arrived at after the consideration of a flawed investigation.  The tribunal conclude that in all the circumstances, the finding of gross misconduct in respect of Allegation 1 should, therefore fall. 

5.10	With regard to Allegation 2, the tribunal conclude that in all the circumstances, the respondent arrived at this conclusion as a result of a misunderstanding of all the circumstances of the charges and the reasons for the claimant’s plea.  The conclusion reached was not reasonable in all the circumstances. 

5.11	Allegation 3, the conclusion reached by the respondent is also unreasonable.  The name and reputation of the Company was not even mentioned in the Court proceedings. In his evidence to the tribunal, Mr Dussroth said that the relationship between the client, Bayer, and the respondent was endangered because Bayer did not agree with the action of the respondent in dismissing the claimant who was one of their more successful sales representatives.  The allegation goes further and says that the claimant had, by her actions on 3 March 2006, destroyed the trust and confidence that is vital to the employer/employee relationship.  The tribunal have concluded that any breach of the implied term of trust and confidence was on the part of the employer and to allege the contrary is unreasonable. 

5.12	Having considered fully all the circumstances of this case, the tribunal conclude that the respondent’s actions were not within the band of responses that a reasonable employer might make.  The respondent acted unreasonably in treating the conduct of the claimant as a sufficient reason for dismissing her.

(6)       COMPENSATION

6.1	Both representatives made written submissions to the tribunal in respect of the compensation payable in the event of a finding of unfair dismissal. They were in agreement regarding the relevant amounts applicable under the various headings. The respondent however submitted that even if there was such a finding, the tribunal should reduce any award to nil for various reasons, not least the conduct of the claimant and her responsibility for the accident. The tribunal considered these submissions but apart from making reductions for the failure to avail of the appeal and mitigation of loss, the tribunal considered that the claimant should be compensated for the losses flowing from her unfair dismissal. 

  6.2  The claimant was aged 42 at the time of her dismissal and had been employed by the respondent for 4 years. She applied for one similar position in about December 2006, but was unsuccessful. She then began to investigate a new business venture and did not, in the tribunal's view, take adequate steps to mitigate her loss by seeking paid employment at the same time. Apart from the period 3 June 2007 to 6 October 2007 when she worked for a friend, the claimant was in receipt of Job Seeker's Allowance. The tribunal noted that the claimant hoped to take up alternative employment in January 2008 and that she did not make any claim for future loss of earnings beyond that date.

6.3     The representatives agreed that the amount of the Basic Award was £1450 calculated thus, 
           Employment aged 39 and 40 at  £290 x 2   =    £580.00
           Employment aged 41 and 42 at £435  x 2   =    £870.00

Total =	£1,450.00

6.4	The claimant had been earning £1382.77 net per month during her employment. In the 12 months between the date of dismissal and the            hearing, she had worked for some 4 months between June and October. Under Article 17 (2) (c)(ii) of The Employment (Northern Ireland) Order 2003, the tribunal is required to take into account the fact that a claimant has not, as here, complied with the Statutory Dispute Resolution Procedures.  The claimant’s reasons for failing to lodge an appeal against her dismissal were not substantiated in any way.  The tribunal was not satisfied there was a good reason for the failure to do so and consequently reduce the compensation awarded by 10%. In addition, the tribunal found that the claimant had not mitigated her loss and makes an additional reduction of 10% for that failure. 
        
          Loss of earnings for 12 months at £I,382.77 net per month      £16,593.24 
          Less earnings between 4 June 2007 to 5 October 2007 	£   7,358.44
                                                                             Total Loss        =    £   9,234.80   
           Less  reductions (as detailed above) of 20%                    -     £    1,846.96 
                                                                                                     =    £     7,387.84
6.5   In addition to her wages, the claimant also lost the additional benefits she had enjoyed during her employment by the respondent of her company car, healthcare and pension contributions that would have continued had she not been dismissed.  Her temporary employment had included a car but not the other benefits. These benefite were agreed by the parties as;- 

Healthcare			12 months  @  £66.78 per month  =£ 801.36

Company car             		8 months  @  £450.00 per month  =£3,600.00

Pension Contributions	12 months  @  £99.00 per month  =£1,188.00

                                                                 Total Loss of benefits  =	£5,589.36

The tribunal accepts that the claimant had no contractual right to a bonus.  However, during her employment, there was custom and practice for bonus payments to be made and she received such payments each year during her employment. The claimant worked for only a short period during 2006 when her sales were recognised as her best ever.  If the claimant had not been suspended, the tribunal concluded she would have performed in her customary manner and received a bonus.  The tribunal consider that an award of £1,000 is appropriate in this category.

6.6  The tribunal hearing was in early November 2007 and the tribunal was informed at that time that the claimant hoped to be back in full time employment by the beginning of January 2008. On that basis, two months further loss will have been sustained and awards a further £4000 for that period based on the above monthly figures. 

6.6  The compensation awarded is;-
         
Basic Award                      	                                                     £  1,450.00
         Compensatory Award  	£7,387.84 + £6589.36  =              £13,977.20
         Future Loss                                                                               £  4,000.00  
         Loss of Statutory Rights                                                            £     250.00
                                                                                                           £ 19,677.20

6.7  The claimant received Job Seeker's Allowance after her dismissal.  The provisions of The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply and the parties’ attention is drawn to the document annexed to this decision in respect of the recoupment which is intended to form part of this decision.

(a)   The monetary award is  £19,677.20

(b)    The prescribed element is £17,977.20

(c)    The periods to which the prescribed element is attributable are 9 November 
2006 to 4 June 2007 and 5 October 2007 to 31 December 2007.

Chairman:

Date and place of hearing: 1-2 and 9 November 2007, Belfast

Date decision recorded in register and issued to parties: