THE INDUSTRIAL TRIBUNALS

CASE REF:    703/12 

CLAIMANT:	Jonathan Henry Flack

RESPONDENT:	MacNaughton Blair Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:	Mr S M P Cross

Panel Members:	Mr P McKenna
	Mr J Hampton

Appearances:

The claimant was represented by his wife Mrs Flack.

The respondent was represented by Mr Philips, Barrister-at-Law, instructed by Messrs Worthingtons Solicitors.

FINDINGS OF FACT

1.	On 31 January 2012, at the respondent’s Larne branch, an obscene e-mail was sent from one of the computer terminals in the general office.  As well as being very upsetting to the person referred to in the email, this was in contravention of the respondent’s computer code as set out in its employment conditions.  As a result an investigation was carried out by Mr Steele, group operations manager of the respondent.  Mr Steele interviewed a number of employees, including the claimant, concerning this e-mail and whether or not the personnel involved knew of it.  These interviews were carried out on a date prior to 9 February, on which date Mr Steele dated the typed copies of the interview notes.  When Mr Steele interviewed the claimant, the claimant denied any knowledge of this e-mail.  Mr Steele cautioned the claimant as to the importance of being completely truthful concerning his answers.  Despite this, the claimant steadfastly denied any knowledge of the e-mail.

2.	Mr Steele carried out a subsequent interview with the claimant on 20 February, when he informed the claimant that the matter might become a disciplinary matter.  He asked the claimant if he would like a colleague to sit in with him as a witness.  The claimant decided not to have such colleague present.  Again, Mr Steele pressed the claimant as to when he had first heard about the e-mail.  The claimant replied, that it was only when Mr Will McClenaghan came out of his office, shouting, “who sent that e-mail”, that he became aware of the situation.  Mr Steele informed the claimant that a CCTV recording showed the claimant and another employee, “both looking over Noreen’s shoulder and laughing at the same time it was sent”.  Mr Steele asked the claimant to again reconsider when he first became aware of the offending e-mail.

3.	The claimant said that he had looked at the computer screen but was laughing at another joke.  He did not see the offending e-mail.  The claimant stated he didn't see the e-mail although he and his colleague had been standing in front of the screen when it was sent.

4.	A further meeting was held between Mr Steele and the claimant on 21 February.  At that meeting Mr Steele said that he was going to show the CCTV footage to the claimant.  He first asked him if he wished to change any part of his previous statements regarding the issue of the e-mail.  The claimant did not wish to change his statements and continued to deny seeing the offending e-mail.  The claimant then saw the footage and at that stage the claimant again said that he saw the screen but didn't see what was on it.  When asked why he was smiling at the time of viewing the screen he stated that someone had said something funny.  After some further discussion concerning his statement, the claimant finally admitted that he had seen the e-mail before Mr McClenaghan came to the door and asked who had sent it.  On being pressed by Mr Steele, the claimant agreed that he had been untruthful up to that point as he did not want to risk his job, as he was already on a warning.  He also admitted that he was trying to protect Noreen, who had been responsible for the e-mail.  Noreen subsequently left the respondent’s employment.  The claimant went on to apologise for the way he had behaved and said it was just because he was so worried about his job.

5.	As a result of this admission a disciplinary hearing was set up on 29 February.  The allegation was that on three occasions, the claimant had denied seeing an offensive e-mail and attempted to mislead the respondent in its investigations.  The disciplinary enquiry was heard by Mr Mather who, after a hearing, conducted in a fair and impartial manner, recommended dismissal of the claimant.

6.	The claimant was given a right of appeal to Mr White, the general manager of the respondent.  This appeal was unsuccessful.  The claimant was dismissed by the company.  The ground for the dismissal was gross misconduct, being serious dishonesty.

THE LAW

7.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter called “the 1996 Order”) an employee has a right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order states, that the onus is on the employer to show that the reason (or the principal reason if there are more than one reason), for the dismissal falls within Article 130(2), or is for some other substantial reason.  In this case the respondent claims that the reason for the dismissal is the conduct of the claimant.  This reason falls within Article 130(2)(b).  When the respondent has discharged this requirement, then under Article 130(4) “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 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.”

	The burden of proof in this regard is neutral and the tribunal has to consider all the evidence of the parties, to ascertain whether the disciplinary enquires and hearings were conducted in a fair manner toward the claimant.

8.	The leading case, which assists the tribunal in cases of this nature, is British Home Stores  v  Burchell 1978 [IRLR] 379, in which the EAT laid down the test of fairness in a case of investigation into the employee’s conduct.  This test, which has been followed by courts and tribunals, lays down certain guidelines regarding the employer’s belief at the time of the dismissal.  The employer, in a case of this type, must show to the tribunal that he “entertained a reasonable suspicion, amounting to a belief in the guilt of the employee of that misconduct at that time”.  Arnold J states in his judgment in the Burchell case, after the above quoted words:-

		“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.  And thirdly, we think, that the employer, at the 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.”

9.	The Burchell and other decisions make it very clear to tribunals that they must not impose their own decision on the parties, in place of a decision that has been reached by an employer who has observed the guidelines stated above.

10.	Once the tribunal has made the decision, that the process of the enquiry and disciplinary and appeal hearings have been conducted fairly, it must decide whether the decision of the employer, to dismiss the employee is within a band of reasonable responses, that a reasonable employer might be expected to adopt, if faced with a disciplinary problem such as the one before this tribunal.

DECISION OF THE TRIBUNAL

11.	The tribunal is unanimous in its decision that the claimant was not unfairly dismissed.  The tribunal hold that the investigation carried out by Mr Steele into the events on the day in question, was a reasonable investigation.  Mr Steele gave the claimant every possible opportunity to say that he had seen the e-mail but he consistently denied it.  It was only when Mr Steele confronted the claimant with the CCTV evidence that the claimant did finally admit the truth.  The tribunal find that the disciplinary hearing and the subsequent appeal were dealt with in a fair and proper manner.

12.	This being the case, the tribunal, bearing in mind the advice laid down in the Burchell decision quoted above and the warning that the tribunal must not substitute its view of events, for the findings of the disciplinary procedures of the employer, unless such findings are outside a band of reasonable responses, that a reasonable employer would adopt, when facing a disciplinary matter of the type; holds that the dismissal is fair.

	In this case the respondent took the view, that the breach of the company regulations, concerning the use of the company computers, to circulate offensive material was very serious.  The fact that an employee such as the claimant told deliberate lies to attempt to frustrate the proper investigation of the enquiry into the misconduct was bad enough; but to persist with these lies, over a number of interviews, had the effect of undermining the trust and confidence that the respondent had in the claimant.  In the view of this tribunal the decision to dismiss the claimant was within the band of reasonable responses, that a reasonable and fair employer might adopt when faced with a similar set of circumstances.

Chairman:

Date and place of hearing:	13 September 2012, Belfast.

Date decision recorded in register and issued to parties: