THE INDUSTRIAL TRIBUNALS

CASE REF:	9824/18

CLAIMANT:			Alan Fitzpatrick

RESPONDENT:		Tesco Stores Limited

DECISION 

The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.

CONSTITUTION OF TRIBUNAL

Employment Judge:	Employment Judge Crothers
		
Members:			Mr I Atcheson
				Mr I Carroll 

APPEARANCES:

The claimant was represented by Mr A Travers, Solicitor, of Adrian Travers Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Pinsent Masons LLP Solicitors.

THE CLAIM

1.	The claimant, who had withdrawn his claim of unlawful discrimination on the ground of disability, claimed that he had been unfairly dismissed by the respondent.  The respondent denied his allegations in their entirety.

THE ISSUE

2.	The issue before the tribunal was whether the claimant was unfairly dismissed by the respondent.

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and, on the respondent’s behalf, from Matthew Thompson, Lead Fresh Manager, who dealt with the disciplinary hearing, and Christopher James McClure, Lead Fresh Manager, who dealt with the appeal hearing.  The tribunal received a bundle of documentation together with other correspondence in the course of the hearing.

4.	(i)	During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (‘Rogan’) – judgement delivered on 13 October 2009.  

		In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

	[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

	“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

	The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.  In this instance it appears that the Tribunal has strayed into the forbidden territory of making its own determination of the evidence.”

	(ii)	The Tribunal therefore sought to avoid straying into the ‘forbidden territory’ of making its own determination of the evidence.

FINDINGS OF FACT

5.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i)	The claimant was employed by the respondent from 10 November 2007 until the effective date of his termination of employment by way of summary dismissal for gross misconduct on 27 June 2018.

(ii)	The correspondence dismissing the respondent, signed by Matthew Thompson, reads as follows:-

	“Dear Alan

	Re; Disciplinary outcome – summary dismissal

I write further to the disciplinary hearing held on 27/06/2018 and conducted by myself.  For the record David Fyfe attended as Company witness/note taker an you declined to be accompanied.

I am writing to confirm my decision to summarily dismiss you for gross misconduct.  The reason(s) for this are:

1.	I have reasonable belief that you have committed an act of gross misconduct and have appeared at work on the 28th May 2018 under the influence of Alcohol.

2.	I do feel that as this is the 6th occasion were [where] you have been suspected of being under the influence and were also in the past you have been issued with various support from final warnings, informal discussion and rehabilitation plans, there is a pattern of reoffending and also commitment to seek help which has not been maintained by yourself.

3.	I feel that the level of help you are now seeking has come too late and you have clearly stated in your last disciplinary that it would be your own fault if this happened again that there would be no more chances.

		Your last day of employment with the Company is 27/06/2018, and you will be paid up to that date.  You are entitled to any outstanding holiday entitlement due.  However, if you have exceeded your holiday entitlement, a deduction for this will be made from your final pay in accordance with your contract of employment.  Your P45 and any relevant paperwork will be sent to you in due course.

If you feel you have been unfairly treated in this matter, you have the right to appeal against my decision.  Please outline the reason why you want to appeal, in writing to Allison Maher, People Manager at 25 Castlewellan Road., Banbridge, BT32 4AX (or email a completed Appeal Form from OurTesco to 2057@uk.tesco.com) within 14 calendar days of receipt of this letter.

Yours sincerely”

(iii)		Paragraph 4 of the respondent’s Drugs and Alcohol Policy of June 2018 includes the following:-

		“While we can carry out tests for alcohol/drug consumption in some areas of the business, if two managers are in agreement and believe you are under the influence of alcohol or drugs and are unfit for work, you will be suspended and the matter will be investigated.”

(iv)	At the hearing the thrust of the claimant’s case was that although he deserved some penalty for what happened on 28 May 2018, he was unfairly dismissed as mental health issues were not adequately taken into account.  He was fit for work on 28 May 2018, and a reasonable employer would have referred him to Occupational Health before 28 May 2018 and in any event, before the appeal hearing held on 7 and 15 August 2018 confirmed his summary dismissal.

(v)	The claimant also relied on the fact that the disciplinary outcome letter referred to above did not follow the drugs and alcohol policy in that it did not refer to the claimant being unfit for work on 28 May 2018.  A thorough and reasonable investigation was carried out by Jenny Gilchrist and statements were obtained from 13 witnesses.  During cross-examination the claimant accepted that multiple witnesses did smell alcohol from him on 28 May 2018 when he commenced work at 4.00 pm, that he was unsteady on his feet, that his eyes were glazed, that he was staring and had red eyes, that his speech was slurred, and that he was shaking.  He also conceded that if he had seen a colleague behaving in this manner he probably would conclude that he was unfit for work.  The claimant was also a union representative in the respondent’s business for 2-3 years.  He was aware of various sources of help for his alcohol problem and had access to union assistance.  He was represented by a trade union representative at the appeal hearing.  The claimant was unconvincing in alleging that he had a lack of support from the respondent preceding 28 May 2018.  He conceded that the union knew of his alcohol problem but alleged that the union also did not give him adequate support.  The tribunal accepts the respondent’s evidence that his unfortunate domestic situation and his attempted overdose together with his alcohol consumption on Sunday 27 May 2018 were taken into account as mitigating factors.  

(vi)	The claimant had had a series of final written warnings culminating in a final written warning on 9 November 2017.  The disciplinary outcome letter on that occasion, signed by Harry Smyth, Store Manager, reads as follows:-

		“Dear Alan

		Re: Disciplinary outcome – warning issued

	I write further to the disciplinary hearing held on 09/11/17, conducted by myself.

For the record Rachel Boyd attended as Company witness/note taker and you declined to be accompanied.

I am writing to confirm my decision to issue you with a final written warning for your misconduct.  This warning will be placed on your personnel file and will expire after a period of 26 weeks from the date the warning is issued provided that your conduct reaches a satisfactory level, and is sustained during this period.

The reason for the warning is/are:

Finding 1 – Attending work with the smell of alcohol on your breath on 20/09/17
Finding 2 – Being in an unfit state for work
Finding 3 – Not being apropriately [sic] presented for work.

The improvement required is:
-	You do not come to work with the smell of alcohol on your breath.
-	You follow up with the AA for meetings and advice on alcohol abuse.
-	You follow doctors [sic] suggestions to attened [sic] St Lukes for  help with addiction.
-	Always come to work presented and in a fit state.

I would like to remind you that any further incidents or misconduct during the period that the warning is live are likely to lead to further disciplinary action and this could ultimately result in your dismissal from the Company.

If you feel you have been unfairly treated in this matter, you have the right to appeal against my decision.  Please outline the reason why you want to appeal, in writing to Rachel Boyd, People Manager at Banbridge superstore within seven working days of receipt of this letter.

Yours sincerely,”

(vii)	The claimant had conceded that he did not dispute the witness statements during the disciplinary process and also conceded, during cross-examination, that the respondent probably had evidence from which it could conclude that he was unfit for work and that he probably knew that the alleged conduct was gross misconduct.

(viii)	Apart from not challenging the witnesses’ evidence during the disciplinary process, the claimant did not make the case that the investigation itself had been substantially defective or that the investigator, Matthew Thompson, or Chris McClure, did not have a belief in his guilt or that such belief was unfounded, illogical or unreasonable.  He also conceded in cross-examination that the respondent had enough evidence from which it could conclude that he was guilty of the events with which he was charged following his suspension on 28 May 2018.  The letter convening the disciplinary hearing, convened for 6 June 2018 referred to allegations of:-

		“Being under the influence of alcohol.
		Not fit to work safely”.

(ix)	Under cross-examination Matthew Thompson stated that, on reflection, he should have considered referring the claimant to Occupational Health.

(x)	Prior to adjourning the appeal hearing on 7 August 2018 Christopher McClure had written to Occupational Health in the following terms:-

	“I am hoping for some advice regarding a colleague who has been dismissed from the company.  I am hearing his appeal today, and on review of the information I would appreciate some advice regarding any further support Tesco could have offered.

The colleague was employed from 25/11/07
Throughout his employment there is a history of alcohol abuse:

There have been 6 documented occasions where this colleague has came into work under the influence of alcohol, the outcomes have been –

He has received a written warnings [sic] Jan 2017, he was also supported with a 13 week rehabilitation support plan
Final Written warning – Nov 17
March 2016 – No further action following investigation
July 2011 – Supported with a 13 week rehabilitation programme
December 2010 – Informal for smelling alcohol on his breath

Is there anything further OH can suggest that Tesco could have done to support this colleague?

Kind regards

Chris McClure”

(xi)	Chris McClure received a response from Occupational Health after the adjournment of the appeal hearing in the following terms:-
	
			“Dear Chris

	I am unable to provide you with any specific advice for obvious reasons.  The matter seems to be disciplinary in context and would be subject to your People policies in management.  You do not say if the individual  was subject to management referral to OH in the past but this process could potentially have signposted the colleague to external resources of help, if they were not already receiving it.  There would not have been any direct ‘treatment’ or therapy available through the OH service however.

I hope this helps you.

Kind regards

Advice Line Duty OHA”

(xii)	Chris McClure did not seek any further advice prior to the reconvening of the appeal hearing on 15 August 2018, as a result of which the summary dismissal of the claimant was upheld.  In hindsight, Chris McClure conceded that he probably should have mentioned the claimant’s mental health in his correspondence to Occupational Health.  Before making his final decision on 15 August 2018, Chris McClure took into account the claimant’s whole history back to 2011 and the fact that his behaviour had not been corrected despite efforts to address it.  In considering mitigating factors, Chris McClure confirmed that he did consider issues concerning the claimant outside of work such as his marriage breakup, the alleged overdose and the sale of his house.  However, apart from his previous history and the lapsed warnings, his conclusion was that the episode which occurred on 28 May 2018 was, in itself, gross misconduct.  The appeal hearing outcome letter is clear in its contents and states as follows:-

“Dear Alan

Re: Appeal outcome – action upheld

I write further to the appeal hearing held on 15/08/18 and conducted by myself.

For the record Sarah Campbell attended as Company note taker and Raymond Neill attended as your representative.

I am writing to confirm my decision to uphold the disciplinary decision of Matthew Thompson taken on 27/06/18 to dismiss you without notice for gross misconduct.

The reasons for this are:

1.	We have a responsibility to provide a safe and healthy working environment for both our customers and colleagues and in this case this includes any colleague being under the influence of alcohol or drugs either on the day or from the night before.

2.	I genuinely believe that you committed an act of gross misconduct ultimately there must be consequences for your actions and I [believe] that dismissal was a reasonable decision from a reasonable employer.

3.	I further believe that as this is the 6th occasion you have been suspected of being under the influence of alcohol anything short of dismissal would not have corrected the behaviour as lesser disciplinary action has failed to in the past.

There is no further right of appeal from my decision.

Yours sincerely,”

(xiii)	The parties agreed a Schedule of Loss, subject to liability.

THE LAW

6.	(1)	The law in relation to unfair dismissal is set out in Rogan as follows:-

(i)	“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.”

“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— 

(a)	the reason (or, if more than one, the principal reason) for the dismissal, and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	A reason falls within this paragraph if it— 

(b)	relates to the conduct of the employee, ...

(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 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."

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.   If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

[16]	The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
	“[48] … The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978. 

[49]  The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111. 

[50]  In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance – 

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection Consolidation Act 1978] is as follows:-

(1)	the starting point should always be the words of section 57(3) themselves;

(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5)	the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

[51]  To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -  

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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. And 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. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

	(ii)	At paragraph 26 of Rogan, Morgan LCJ states as follows:-

	“The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for tribunal.  In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.  

		Again at paragraph 27 of his judgment, Morgan LCJ states:-

		“In our view the conclusion by the tribunal that “the Panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the Disciplinary Panel to carry out that task”.

		In paragraph 28 he continues:-

		“The tribunal’s conclusion that the Disciplinary Panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation”.

		Girvan LJ in paragraph 7 of his judgement states as follows:-

			“The investigation was one which was reasonable in the circumstances.  It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”

(iii)	Harvey on Industrial Relations and Employment Law states at D1, 9(6)(b)(iii) at paragraph 1541-1542.01 as follows:-

			“[1541]

		The outcome of the decisions in Diosynth Ltd v Thomson [2006] IRLR 284 and Airbus UK Ltd v Webb [2008] ECWA Civ 49, [2008] IRLR 309 (see below) is that it may be reasonable for employers to rely on misconduct that is the subject of an expired warning to justify dismissal if the subsequent misconduct, which is the reason (or principal reason) for dismissal itself, justifies dismissal but not to tip the balance if the subsequent misconduct does not itself justify dismissal.  It may in particular be reasonable if the employer is considering not just the particular lapsed warning per se, but as part of the employee’s overall disciplinary record over time.

	[1542]

	The decision of the Inner House of the Court of Session in Scotland in Diosynth Ltd v Thomson was that it was unfair to use a lapsed warning to tip the balance in favour of dismissal and it should have been disregarded.  This was distinguished in England by the Court of Appeal in Airbus UK Ltd v Webb (overturning the decision of the EAT) in which misconduct itself had justified dismissal and the presence of a lapsed warning was used only when considering mitigating circumstances.  The Court of Appeal held that there was nothing in ERA 1996 s 98(4) that laid down a rule for tribunals to say that the circumstance of the employee’s previous misconduct must be ignored by the employer, if the time-limited final warning had expired at the date of the subsequent misconduct, which was the reason (or principal reason) shown by the employer for the dismissal.

[1542.01]

	The operation of this distinction is well illustrated by the decision in Stratford v Auto Trail VR Ltd UKEAT/0116/16 (31 October 2016, unreported), where Webb was applied (and Diosynth distinguished in the same way as in that case).  The claimant had a long history of disciplinary breaches, many ending in warnings.  The last (the nineteenth) comprised two warnings.  Shortly after they expired, he committed another act of misconduct and was disciplined again.  The manager accepted that it was not gross misconduct and awarded a final written warning for the breach itself.  However, he then went on to review the whole record and consider whether the claimant could be trusted to mend his ways in the light of this.  He concluded that he had been given every chance and that there was no expectation of any improvement.  As a result, the claimant was dismissed with notice.  He brought unfair dismissal proceedings, arguing that the lapsed warnings should not have been considered.  The tribunal directed itself as to the two above cases and held, applying Webb, that balancing the whole disciplinary record against the normal rule against using expired warnings the dismissal here was fair.  The EAT rejected the claimant’s appeal.  The tribunal had applied the law properly and had taken into account not just the record, but the offence itself and the manager’s prediction of an equally bad future if the claimant was not dismissed.  Given that there was here at least an element of the record ‘tipping the balance’ into dismissal, it may be that Diosynth was restrictively distinguished here; if so, it may be that Diosynth could now only realistically be applied if the decision to dismiss for an offence prima facie not meriting it was influenced directly by an expired warning (ie not by a much longer record of disciplinary breaches).

SUBMISSIONS

7.	The tribunal carefully considered helpful oral submissions presented to it on behalf of both parties on 9 April 2019.  Mr Travers relied on an Employment Tribunal decision in case of McElroy v Cambridgeshire Community Services NHS Trust (case number 3400622/2014), and in particular, paragraph 20.3 thereof, entitled “would the reasonable employer have treated smelling of alcohol as being unfit for duty?” to contend that in this case the claimant was fit for duty.  He also included in  his submissions a reference to CCTV footage which was not viewed in the course of the disciplinary process.  He emphasised the claimant’s case in relation to the non-referral to Occupational Health both before and after 28 May 2018 to substantiate his submission that the dismissal was unfair.  Mr Hamill in referring to certain replies made by the claimant in the course of cross-examination, submitted that the claimant’s representative, in referring to Occupational Health, was confusing an employee with a patient.  He made the point that this was not a disability case involving a request for reasonable adjustments and that a referral to Occupational Health would have made no difference to the outcome.  He submitted that the claimant’s dismissal was within the band of reasonable responses and also addressed, in the alternative, the question of remedy.

CONCLUSIONS

8.	The tribunal, having carefully considered the evidence together with the submissions, and having applied the principles of law to the findings of fact, concludes as follows:-

		(i)	The Tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

			(1)	Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

(a)	Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

				(b)	Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

(i)	Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

(ii)	At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

				(c)	Was the dismissal a fair sanction in the circumstances?

(d)	Was the claimant afforded an effective right of appeal in the circumstances?

(ii)	The Tribunal answers all questions in the affirmative and therefore dismisses the claimant’s claim of unfair dismissal.

Employment Judge:

Date and place of hearing:	 8 & 9 April 2019 at Belfast.

Date decision recorded in register and issued to parties: