THE INDUSTRIAL TRIBUNALS

CASE REF:	85/15

CLAIMANT:			Derek Alexander McKinney

RESPONDENT:		Noonan Services Group (NI) Limited

DECISION 

The unanimous decision of the tribunal is that:

	(1)	the claim for unfair dismissal is dismissed;

	(2)	the claim for disability discrimination is dismissed; and

(3)	the claimant is awarded the sum of £44 in respect of his claim for unpaid wages.

Constitution of Tribunal:

Employment Judge:	Ó Murray 

Members:			Mrs E Gilmartin
				Mr P McKenna	

Appearances:

The claimant represented himself.

The respondent was represented by Ms K Moore of EEF Northern Ireland.

The Claim

1.	The claimant’s claim was for unfair dismissal, for discrimination on grounds of disability and for unauthorised deduction from wages in the sum of £170.  

2.	The respondent alleged that the claimant resigned and that, in the alternative, if he was dismissed he was fairly dismissed for gross misconduct.  The respondent accepted that wages were owed in the sum of £44 gross.  The respondent denied discrimination.

Sources of Evidence

3.	The tribunal had statements and oral evidence from the claimant and for the respondent from Mrs Sally Smith, Account Director, and Miss Penny Morrow, Payroll Administrator.  The tribunal did not have regard to the witness statement of Mr Strawhorne on the claimant’s behalf as the claimant decided that he did not wish to call Mr Strawhorne to give evidence.

The Issues

4.	The issues for the tribunal were therefore as follows:

(1)	As the respondent confirmed that the claimant was dismissed verbally at the disciplinary hearing on 14 November 2014, the issue was whether the claimant’s letter of resignation dated 14 November (but prepared and posted by him on 17 November 2014), meant that the dismissal was revoked and replaced by a resignation;

(2)	If the claimant was dismissed whether that dismissal was a fair dismissal for gross misconduct;

(3)	Whether any dismissal was automatically unfair as it was in connection with a TUPE transfer;

(4)	Whether any dismissal was rendered unfair because the true reason for dismissal was the fact the claimant had been on extended sick leave and had had a successful industrial injuries claim against the respondent;

(5)	Whether the claimant was unlawfully discriminated against on grounds of his disability in that the respondent, firstly, failed to take account of his mental health issues when deciding on the penalty of dismissal and, secondly, that the respondent failed to take account of the fact that the conduct in question was in relation to relief of stress.

The Law

5.	Neither side referred us to any legal authorities or extracts from Harvey on Industrial Relations and Employment Law.  The parties were however content that the tribunal should look at the legal provisions.  In Harvey at Division D1 part C at paragraphs 224.02 to 600 is a discussion in relation to the issue of whether or not there was in a fact a dismissal.  The thrust of the discussion relates to cases where there is a dispute over whether an individual used words of resignation or words of dismissal.  In cases where unambiguous words of dismissal or resignation are used the issue is whether or not there are special circumstances meaning that the words should not be taken at face value.  The discussion also relates to whether a party unilaterally seeks to retract a dismissal or resignation which was unambiguously expressed. 

6.	If the claimant resigned, his claims for unfair dismissal fail as the burden is on him to prove he was dismissed before he can allege any dismissal was unfair.

7.		The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“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).

8.	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

Findings of Fact and Conclusions

9.	The claimant was employed as a porter by the respondent and its predecessor from 1 October 1981 until the termination of his contract in November 2014.  A TUPE transfer had taken place on 1 August 2013 which meant that the claimant, together with over 100 other University of Ulster staff, transferred to the respondent with their contractual terms.  They had more favourable contractual terms in relation to holidays, wages and sick pay entitlement than the respondent’s existing employees.

10.	The claimant provided a copy of his GP notes and records in relation to the disability relied upon which related to his long-standing depression and anxiety.  In light of the contents of the GP notes and records the respondent conceded that the claimant was disabled, at the time relevant for these proceedings, for the purposes of the Disability Discrimination Act 1996.

11.	The incident which ultimately led to the termination of the claimant’s employment occurred on 4 November 2014 when the claimant was observed using a computer in the University library ‘computer lab’ during his working hours.  The claimant was observed checking computer monitors until he found one which had been inadvertently left logged on by a student.  The claimant then proceeded to use the computer to access Facebook and to play computer games and he was also browsing the web.  When he finished he ensured that the computer was left the way he had found it, in that it was logged in with a blank document open.  He then switched the monitor off which meant that it would look as if it had been shut down but it could be used again at a later stage.

12.	These observations were made by the University’s ICT Campus Officer and he outlined them in an emailed report to the claimant’s line manager Mr Arthur on 6 November 2014.

13.	Mr Arthur carried out an investigation which included the following:

(1)	Consideration of the report by the University ICT Officer;

(2)	He viewed footage of the CCTV which showed the claimant at the relevant time on the computer monitor on two occasions;

(3)	He checked the record of the claimant’s swipe card being used to open various computer labs in the library on 20 occasions over a period of 13 days;

(4)	He held an investigatory meeting with the claimant and his trade union representative on 10 November 2014;  

(5)	He considered the claimant’s written apology of 10 November and his written explanation of 10 November 2014.

14.	The claimant admitted that he had done wrong and apologised for it.  Whilst the claimant initially said that he had used the computers to check issues about his pay and to check issues about his health he later admitted at the disciplinary hearing that he was indeed on Facebook, and playing computer games.

15.	A letter of invitation of 11 November 2014 invited the claimant to the disciplinary hearing and outlined the charges of gross neglect of duties and inappropriate use of electronic communications and University property.  It was made clear in the letter that this could be deemed to be gross misconduct.

16.	The disciplinary hearing took place on 14 November 2014 and was conducted by Mrs Smith.  We note with surprise that Mrs Smith conducted the hearing with the attendance of a note taker and reached her decision on her own.  The claimant at tribunal complained that no-one was there from HR to deal with such a serious matter.  Whilst we find it surprising that an organisation of this size would conduct such a serious hearing in the presence of only one manager, in the circumstances of this case, we do not find this to amount to a procedural flaw given the admissions made by the claimant.  

17.	At the end of the meeting, Mrs Smith dismissed the claimant for gross misconduct for the two offences of firstly, gross neglect of duties, in that he was not carrying out his normal duties, and, secondly, computer misuse.  

18.	The claimant was accompanied by his Trade Union representative at both the investigatory and disciplinary meetings and was given full details of the allegations against him and had a full chance to put his side of the case.  

19.	Following the dismissal at the hearing on 14 November 2014, the claimant was left alone with his Trade Union representative and had a telephone conversation with the regional trade union organiser Nuala Conlon.  She stated that she would try to get the company to accept a resignation instead of dismissing the claimant and the claimant agreed to this.  

20.	The subsequent course of events on the Friday and Monday are somewhat confused.  Having assessed all the evidence from both the claimant and the respondent and having checked the documentation we find that the following occurred:

(1)	The claimant considered the matter further over the weekend and decided on Monday 17 November 2014 that he would send a resignation letter by post to the respondent.  On the advice of Mrs Conlon he dated that letter 14 November 2014 and handed it to Mr Arthur on 17 November 2014 when he was clearing out his locker in work;  

(2)	On 17 November 2014 the claimant received a letter of dismissal which must have been posted on Friday 14 November even though it was dated 17 November.  That letter dismissed the claimant for gross misconduct having been drafted by Mrs Smith before she left the premises on the Friday and before she spoke to Mrs Conlon later that same day to agree the resignation.  The claimant spoke to Mrs Conlon on the Monday when he got the letter of dismissal and she told him to tear it up and to go ahead and tender his letter of resignation which he handed to Mr Arthur on 17 November.

21.	It was the claimant’s case whilst he had decided to resign following discussion with the Trade Union representative and Mrs Conlon on the Friday and, having thought about the matter over the weekend and having sent his letter of resignation, he expected to hear from the respondent to accept his resignation.  

22.	In passing we note Mr McKinney’s justifiable indignation that, when he told the tribunal in submissions that he had received a letter of dismissal, Mrs Smith and Ms Moore emphatically denied that one existed.  It was only when the claimant produced the letter that he had received that it was accepted by Mrs Smith that she had actually drafted the letter and left it to be posted on the Friday.  We are very surprised indeed that the existence of this letter was initially denied in this way by Mrs Smith.  Whilst this reflects badly on the respondent we find it to be irrelevant to the issues in this case. 

23.	In the present case it is clear that there were unambiguous words of dismissal issued verbally by Mrs Smith at the conclusion of the disciplinary hearing on 14 November 2014.  It is also clear that unambiguous words of resignation were contained in the claimant’s letter of resignation prepared and delivered on 17 November 2014.

24.	A notice of dismissal cannot be unilaterally withdrawn.  In this case an agreement was reached on Friday 14 November 2014 between the claimant, his trade union representatives and Mrs Smith that the dismissal which had been issued should be retracted to enable the claimant to present his resignation.  This amounted to an agreement by the parties to effect retraction of the dismissal on the basis that it would be substituted by the claimant’s resignation.  

25.	The claimant’s resignation was unambiguous, it was in writing and it followed a period of reflection after the claimant had taken trade union advice.  The claimant at no point sought to retract his resignation.  He accepted without protest a P45 and payment for accrued holidays.  These acts are consistent with the agreed retraction of the dismissal and the substitution of the resignation.  In reaching this conclusion we have applied general principles of contract law and find that the legal authorities in Harvey assist us only to the extent that it is made clear in that discussion that where unambiguous words are used they can only be retracted by agreement.  No special circumstances within the meaning of the authorities pertained in this case and neither side sought to rely on special circumstances.

 26.	The burden is on the claimant to prove that he was dismissed.  The respondent accepted at tribunal that the claimant was dismissed during the meeting on 14 November 2014.  This was followed up by a letter which the claimant received on Monday 17 November and when he queried it with Mrs Conlon he was told to tear it up and to send his resignation letter in.  The claimant proceeded to deliver his resignation letter and this was in pursuance of the agreement which had been brokered by his trade union representatives with the employer on the Friday that the resignation would be substituted for the dismissal.  In these circumstances we find that there was an agreed retraction of the dismissal and it was substituted by the claimant’s resignation which the respondent accepted by its actions in sending a P45 and paying the claimant for his accrued holidays.  

27.	As the claimant resigned from his employment there was no dismissal and the claim of unfair dismissal on all grounds is therefore dismissed.

28.	If we are wrong in relation to the resignation supplanting the dismissal, we set out below our findings and conclusions in relation to the disciplinary process and penalty.

29.	We find that the disciplinary process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances for the following principal reasons.  

30.	The contract was terminated because of two disciplinary offences namely neglect of duties and inappropriate use of electronic equipment.  We regard the neglect of duties offence as being of a less serious nature than the inappropriate use of the computer.  The inappropriate use of the computer was an extremely serious offence and the respondent was justified, in the circumstances of this case, to regard it as gross misconduct warranting summary dismissal.

31.	Throughout the disciplinary process the claimant accepted that he had done something wrong and his claim at tribunal centred on the severity of the conduct and the consequent severity of the penalty.  We find that it was reasonable for the employer to regard the claimant’s actions as very serious indeed.

32.	We reject the claimant’s explanation that there was fault on the part of the University and on the part of the individual student for the conduct.  The responsibility for the conduct lays squarely on the claimant’s shoulders and he should have known that it was a very serious matter to use someone else’s logged-in computer to carry out his own internet searches.  The fact that those searches were innocuous does not detract from the seriousness of the claimant’s actions. 

33.	We reject the claimant’s argument that the respondent’s internet policy was not clear.  It is very clear from the content of that policy that it covers staff who are given authority to access computers.  The claimant was in a job which did not require the use of computers and, consequently, he had not been issued with computer access codes or log-in details.  It was clear that the claimant was doing something completely outside the scope of his duties.  It did not need him to know the detail of a computer policy in order to appreciate that what he was doing was wrong and that it amounted to a very serious conduct issue.

34.	In this regard we note that the claimant had previously been a trade union representative for many years and at tribunal he came across as a very articulate individual.  We simply do not accept that he could not understand the seriousness of the conduct that he was engaged in.

35.	The investigation and disciplinary hearing resulted in the claimant admitting the acts of which he was accused and his contention was centred on the severity of the act.

36.	On the disability discrimination claim the claimant made two points namely:

(1)	That the employer should have taken account of his mental health issues when deciding on the penalty.  We reject this aspect of the claim as we find that the claimant has not shown less favourable treatment.  We accept the respondent’s evidence that a non-disabled person in similar circumstances would have been sacked for the same conduct offences;  

(2)	The claimant alleged at tribunal that he told the managers during the disciplinary process that he was only on the computer in order to relieve stress.  We do not accept the claimant’s evidence on this point as this did not form part of his claim until the tribunal hearing and none of the records of the disciplinary process allude in any way to this point.  Even if the claimant had told the disciplining managers about this, the fact remained that he was engaged in unauthorised access to computers, and he knew what he was doing was wrong to the extent that he sent a letter of apology to the investigating officer.  We therefore do not accept that it was valid of him to offer as an explanation that his medical condition meant that he was allowed to engage in unauthorised acts of this nature.

37.	We reject the claim that the termination was related to the TUPE transfer or was related to the fact that the claimant had returned from sick leave and he had previously had a claim for an industrial injury.  We are entirely satisfied that the claimant’s termination was due to gross misconduct and we are satisfied that the respondents would have treated anyone else who had not transferred under TUPE or who had not had an industrial injury, in the same way.

38.	The claimant claimed £170 and this claim had two aspects as follows.

(1)	That four and a half days of his sick absence entitlement related to days he had to take off when he had an industrial injury.  The claimant had a successful claim against the employer for that injury and, as he received full sick pay for that absence, he had no financial claim for the days off work at that time.  He had however used four and a half days of his sickness entitlement and, much later, when he was off work at the time relevant to these proceedings, his entitlement to sick leave on full pay was therefore exhausted four and a half days earlier that it might otherwise have been.  We reject the claimant’s claim on this point.  We heard no evidence that any breach of contract occurred which led to any actionable loss.

(2)	The claimant alleged that he was entitled to pay because he was wrongly put on sick leave when he was on holidays on 17 and 18 April 2014.  The claimant at that time was on annual leave but suffered an ankle injury and rang his employer to let them know.  Unbeknown to him, his managers put him on sick leave.  The respondent accepted during the tribunal hearing that they had done this in error and accepted that his sick leave actually began on 23 April 2014 which was the date that his sick line began.  Having assessed all the evidence on this point we accept that this part of the claim relates to two half days’ pay because the claimant went onto half pay on sick leave two days earlier than he should have.  The claimant agreed the figures produced by the Payroll Officer and we therefore award the net sum relevant to the gross figure of £55.43.  Deducting an estimated figure for tax and national insurance we therefore award the net sum of £44 in this regard.

39.	The claimant stated that the respondent was wrong to deduce from their investigations that he must have used the computer on a large number of occasions.  The respondent’s case was that the claimant had accessed the computer lab 22 times in 17 working days.  At tribunal, it was the claimant’s case that someone else could have used his card, he might have swiped in other staff and students and he would have been in those labs doing legitimate work.  We accept that it was reasonable for the employer to assume that at least a proportion of those entries to the labs related to him using computer terminals given the unsatisfactory explanations provided by the claimant in the investigatory and disciplinary hearings.

40.	The claimant alleged in tribunal and during the disciplinary process at the various stages that he was looking up matters to do with his medical condition and his pay issue.  The contemporaneous records however record that the claimant agreed that he was on Facebook and playing computer games and browsing the internet generally when he was observed.

Summary

41.	We find that in all the circumstances in this case the claimant resigned from his employment and his case for dismissal on various grounds is therefore dismissed.

42.	Even if he had been dismissed we would have found that that dismissal was fair both as regards procedure and penalty for the reasons given above.

43.	We reject the claim for disability discrimination.

44.	We award the sum of £44 in relation to the pay claim.

45.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge

Date and place of hearing:  30 June and 1 July 2015, Belfast.

Date decision recorded in register and issued to parties: