Case No. 924
THE EMPLOYMENT TRIBUNAL
BETWEEN:
Applicant:
Respondent:
Frank Noel O'Hare
SI. Christopher's Fellowship
and
St. Christopher's Fellowship (Isle of
Man)
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT:
ON: 91h October 2008
Douglas
CHAIRPERSON: Dr. Sharon Roberts
MEMBERS: Mr. Stuart Garrett
Mr. Peter Hannay
REPRESENTATION
For the Applicant:
The Applicant was not represented
For the Respondent:
Represented by Mr. Steven Coren
DECISION
The unanimous decision of the Tribunal is that the Applicant was not unfairly
dismissed.
The Applicant did not present any evidence to support his claim of wrongful
dismissal. The Tribunal did not consider this claim.
REASONS IN FULL FORM
Complaint
1.
The Applicant filed his Application dated the 241h February 2006 to the
Tribunal.
His complaint was as follows:"Unfair dismissal, wrongful dismissal, ill treatment, lack of support, neglect
and unprofessional procedures"
Save for the claim for wrongful dismissal, the rest of the claim can be
encompassed into the one claim of unfair dismissal.
1
2.
The Respondent denied unfair dismissal arguing that the dismissal was a fair
one.
Background
3.
St. Christopher's Fellowship, as agents of the DHSS, managed (inter alia) what is
commonly called "the Secure Unit" ("the Unit") in the Isle of Man. The Unit
houses children, who for various reasons, need to live in a secure unit and are
not free to come and go as they please. Some of these children are capable of
displaying challenging behaviour from time to time and the staff at the Unit are
trained to deal with this. St. Christopher's Fellowship carried out this work in the
United Kingdom and came to the Isle of Man on the 151 July 2004 to take over
from Nugent who were carrying out the work before. On the 10lh September
2004, St. Christopher's Fellowship created the charity known as St. Christopher's
Fellowship (Isle of Man) and they took over from St. Christopher's Fellowship.
The Applicant commenced his employment with Nugent as a residential social
worker on the 7'h April 2003. St. Christopher's Fellowship (Isle of Man) took over
the employment of the Applicant on the 10Ih September 2004. Hence the two
named Respondent's in this matter ("the Respondents").
4.
Effectively, taking account of the principal of continuous employment, the
Applicant commenced his employment with the Respondent on the 7'h April 2003.
5.
The Applicant signed a 'Terms and Conditions of Employment" with the
Respondent on the 28 1h August 2004 ("the Contract").
6.
The Contract stated that the Applicant was a Residential Social Worker ("RSW')
at the Secure Unit. Relevant to this case are the following clauses:Training - the Contract stated training would be provided
Termination of employment - The Contract provided that the Respondent
reserved the right to terminate the employment for serious misconduct in
accordance with its disciplinary procedure.
Grievance and Disciplinarv procedures - The Contract stated that both these and
the procedures were available to view on the Respondent's intranet or from the
Manager of the employee or from Human Resources ("the Disciplinary
Procedure").
Code of Conduct - The Contract stated that the employee should ensure he was
aware of St. Christopher's Code of Conduct which was available on the intranet
or from the manager of the employee.
7.
The Tribunal had the benefit of a copy of the Disciplinary Procedure in which the
procedure is set out alongside examples of conduct which will be considered
gross misconduct warranting summary dismissal. These included (inter alia)
child protection issues, physical contact such as a push or gesture which could
be construed as threatening and bullying. The list was stated not to be
exhaustive.
2
8.
The Applicant was summarily dismissed on the 29 th November 2005 following a
disciplinary hearing "(the Disciplinary Hearing") carried out by Mr. Ronald
Giddens ("Mr. Giddens") on the 25 th November 2005. The Applicant appealed
against the Decision ("the Decision") but on the 18th January 2006 following an
appeal the Decision was upheld
9.
The Decision was based on an alleged incident ("the Incident") which took place
at the Secure Unit on the 25 th August 2004 whilst the Applicant was on duty. The
allegation was that on the 25 th August 2004 an argument commenced between
the Applicant and one of the young people resident at the Secure Unit for whom
the Applicant was caring. We will call that Young Person "DA". The Applicant
was allegedly threatening and swearing at DA, spitting in his face, gripping DA
round the throat and pushing DA against the wall. The words used were on the
lines of "if you weren't in here I would f****** knock your block off'.
10.
The Applicant denied the Incident ever happened when first confronted with it
and has continued to deny it consistently every since. He accused DA of lying
and being malicious towards him as DA did not like him.
11.
Evidence to support the existence of the Incident was in the form of a statement
DA made to the Police ("DA's Police Statement") and the Statement made to the
Police of another young person who was in the adjacent room when the incident
allegedly took place and saw and heard what happened. We will call that young
person "RN" ("RN's Police Statement"). RN was able to see into the room where
the incident took place. She said in her statement to the police she was able to
do so because there was a glass window between the 2 rooms. The window
was covered with paper on both sides generally but often it was picked off by
young people just being generally nosey. On the day of the Incident, RN said the
paper was partially picked off on both sides of the window enabling her to
witness the Incident.
12.
At the time of the Incident, RN was with a RSW from another separate entity
called MFS. Her name was Denise Groarke ("Ms Groarke"). Ms. Groarke
apparently made a handwritten report to MFS of what she had heard (she did not
say she had seen anything). The whereabouts of this handwritten report were
never made clear to the Tribunal. Certainly the handwritten report was not
available at the Disciplinary Hearing. What was available was what was
purported to be a typewritten version of that handwritten note ("Ms. Groarke's
Report"). This was neither signed nor dated. Unfortunately the Police were
unable to obtain a better statement from Ms. Groarke as they believed she had
left to live in Australia. Ms. Groarke's Report stated she had heard the Incident.
13.
The version of the Incident by RN, Ms. Groarke and DA in relation to the words
used by the Applicant were not identical but significantly similar.
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14.
Ms. Groarke did not make a formal report other than as stated herein. Neither
did she call the police at the time of the Incident nor did she seek help from other
RSW's at the Secure Unit at the time.
15.
The Incident did not immediately come to light as DA did not complain at the
outset later indicating he did not want to be a "grass".
16.
Mrs Leanne Newbold ("Mrs. Newbold") who was the Applicant's Superior came
to work at the Secure Unit on the Saturday 28 th August 2004 whereupon RN told
her about the Incident. Mrs. Newbold spoke to DA about this and he confirmed
the Incident had happened. Mrs. Newbold made a statement to the Police.
17.
Mrs. Newbold spoke to Ms Maxine 'McBrier (Ms. McBrier) on Monday the 30 th
August 2004 about the Incident. Ms. McBrier was the manager of the Secure
Unit. DA confirmed to Ms. McBrier that the Incident had happened. Ms. McBrier
made a statement to the Police. DA had also confirmed to another RSW on the
29th August (Mr. David Roberts) ("Mr. Roberts") that the Incident had taken place.
Mr. Roberts made a statement to the Police and expressed the view that he
believed DA was telling the truth.
18.
Evidence was given to the Tribunal by Ms. Lynda Morgan (Ms. Morgan") Director
of Human Resources and Administration for the Respondents. She stated that
as the Incident was a serious allegation involving assault on a young person at
the Secure Unit a strategy meeting was promptly held. By this she explained a
meeting was held between the Police Child Protection Unit, the DHSS, and the
Respondent. The decision at the strategy meeting was, not unsurprisingly, that
the Police should investigate the matter.
19.
By letter dated 3rd September 2004, Ms. Morgan advised the Applicant that the
Police were investigating the Incident, that they would be contacting him and that
whilst the investigation was ongoing, the Applicant was suspended from work on
full pay.
20.
On the 7th October 2004, Ms. Morgan and Mr. Steven Taylor, another employee
of the Respondent, had a meeting with the Applicant to ask about the Incident.
The Applicant was made aware that RN had said she had seen and heard the
Incident and Ms. Groarke had heard it. Ms. Morgan also referred to the fact a
Mr. Eddie Tinsley ("Mr. Tinsley") was also at the Secure Unit when the Incident
occurred. The Applicant denied the Incident took place and accused DA of bad
behaviour towards him.
21.
On the 21 st October 2005, Ms. Morgan wrote to the Applicant adviSing that the
Police were investigating the matter and that the Respondent had been told to
take no further action until the outcome of the Police investigations were known.
22.
Nothing further was done in relation to the matter by the Respondent for some
time said Ms. Morgan as the Police had told them not to.
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23.
On the 8'h April 2005 the Police wrote by email to Ms. Morgan ("the Police April email") indicating that they were not proceeding with the prosecution of the
Applicant (although they had actually started the process). The reasons for this
included the fact there was only one independent adult witness (Ms. Groarke)
who was now living in Australia and the cost of bringing her back to give
evidence was prohibitive. The Police felt without her evidence there was not a
realistic chance of a successful conviction. Furthermore they were concerned for
DA and RN giving evidence in Court as both were vulnerable young people and
the Court appearance was not in their best interests (the Police had discussed
this with the DHSS). Taking all that into account, the decision was not to
proceed. However the Police April E-mail states as follows:"The Prosecution were of the opinion that the Complainant [DA} and the
other young person [RN] were truthful in their accounts"
24.
Ms. Morgan explained to the Tribunal that the Respondents were now free to
pursue their disciplinary procedure with the Applicant in respect of the Incident.
Ms. Morgan explained to the Tribunal that some considerable time had elapsed
since the Incident and memories may have faded. The best evidence to get
would be the statements various witnesses had provided to the Police as these
were made when the Incident was fresh in the mind. Furthermore some of the
witnesses were somewhat reluctant to make new statements. Also, the view was
taken that to obtain new statements from DA and RN would not be in their best
interests as they had "moved on".
25.
Next followed a further delay whilst Ms. Morgan attempted to get the Police
statements from the Police. She did not sit idly. She wrote on the 28'h April
2005, the 19'h May 2005, the 15'h June 2005, the 5'h August 2005 and obtained
them early in October 2005. Throughout this period Ms. Morgan kept the
Applicant advised of the position. She also invited the Applicant to give her a
copy of the statement he had made to the Police but that was denied by his then
Advocate.
26.
The disciplinary hearing ("the Disciplinary Hearing") took place on the 25'h
November 2005. The Applicant was there accompanied by Mr. Steven Salter his
Union representative. Mr. Giddens was there as Chair and the decision maker.
Colin Mitchell a senior HR person for the Respondent was there and Ms. McBrier
was there presenting the case.
27.
The Disciplinary Hearing had the benefit of the following Police statements.
From DA
From RN
From Ms. McBrier
From Ms. Newbold
From Mr. Roberts
From Lynda Goldsmith a RSW with the Respondent who gave evidence
of allegations in relation to earlier Incidents (for the purpose of record
the Tribunal took no account of alleged earlier incidents)
5
From Catherine Anne Twist a RSW with the Respondents who had no
knowledge of the Incident.
28.
Additionally, the Disciplinary Hearing had before it the Police April e-mail and the
typewritten report made by Ms. Groarke to Damien Bradley of MFS indicating
what she had heard in relation to the Incident. As stated it was unsigned and
undated.
29.
At the Disciplinary Hearing the Applicant was afforded the opportunity to question
Mr. Roberts, Mr. Newbold and Ms. McBrier. Evidence was given to the Tribunal
that the Respondent had made no attempt at any time to contact Ms. Groarke
themselves and had relied on the Police statement that she was latterly living in
Australia.
30.
The Decision was made by Mr. Giddens following the Disciplinary Hearing to
summarily dismiss the Applicant for gross misconduct indicating that following
the evidence before the Disciplinary Hearing the Respondents were satisfied that
the Applicant had been guilty of being abusive, exhibiting threatening behaviour
and assaulting a young person in the Secure Unit on the 25'h August 2004. The
decision was communicated to the Applicant by letter dated the 29'h November
2005 ("the Decision Letter"). The Decision Letter set out in great detail the
findings and the evidence used to support those findings.
31.
The Applicant appealed against the Decision and an appeal hearing was held on
the 13'h January 2006. Present at that were Mr. Jonathan J.M. Farrow, Chief
Executive of the Respondent who made the decision that the appeal failed and
the Decision was upheld .. The Tribunal, most regrettably, was not given copies of
the notes of the appeal hearing - only the letter to the Applicant of the 18'h
January 2006 where the decision was explained. It was evident from the letter
that the Applicant had again had the benefit of Mr. Steve Salter as his Union
representative at the appeal hearing. Additionally the Tribunal heard that Ms.
Morgan was present at the Appeal hearing but did not take part in the decision
making.
32.
Evidence was given to the Tribunal on behalf of the Respondent by Ms. Morgan
as to how she carried out her investigation and formulated the charges against
the Applicant. She also indicated the Applicant remained on full pay from the
date of suspension until the dismissal. Evidence was given to the Tribunal on
behalf of the Respondent by Mr. Giddens who explained what happened at the
Disciplinary Hearing.
33.
The Applicant gave evidence himself in which he denied that the Incident had
taken place citing malice on the part of DA and RN. He also complained bitterly
that the Respondent should have ensured Ms Groarke was at the Disciplinary
Hearing and available for cross examination by him and that her statement was
inadequate. The Applicant also criticised the Respondent for not having a
statement from Mr. Eddie Tinsley an RSW who was at the Secure Unit on the
6
night in question. Finally the Applicant was extremely critical of the delay in
bringing the Disciplinary Hearing.
THE LAW
34.
Section 44 of the Employment Act 1991 ("the Act") contains general
provisions relating to the fairness of dismissal and is set out below for ease of
reference.
"44. General provisions relating to fairness of dismissal
(1) In determining for the purposes of this Part whether the dismissal of an employee
was fair, it is for the employer to show:(a)
what was the reason (or, if there was more than one, the principal reason)
for the dismissal, and
(b)
that it was a reason falling within sub-section (2) or some other substantial
reason of a kind such as to justify the dismissal of an employee holding the
position which that employee held.
(2) The decisions falls within this sub-section if:(a)
it related to the capability of qualifications of the employee for performing
work of the kind which he was employed by the employer to do, or
(b)
it related to the conduct of the employee, or
(c)
it was that the employee was redundant, or
(d)
it was that the employee could not continue to work in the position which he
held without contravention (either on his part or on that of his employer) of a
duty or restriction imposed by or under a statutory provision
(3) Where the employer has fulfilled the requirements of SUb-section (1) then, subject
to sections 45 to 49, the determination of the question whether the dismissal was
fair or unfair, having regard to the reason shown by the employer, 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 that question
shall be determined in accordance with equity and the substantial merits of the
case.
(4) In this section, in relation to an employee:(a)
"capability" means capability assessed by reference to skill, aptitude, health
or other physical or mental quality;
(c)
"qualifications" means any degree, diploma or other academic, technical or
professional qualification relevant to the position which the employee held"
35.
There was no dispute between the parties as to the interpretation of Section 44
in its application to the present case which is one of suspected misconduct.
The effect of Section 44 (1) is that it is for the Respondent to show what was
the reason, or if there was more than one, the principal reason for the
dismissal and that the reason was a reason falling within Section 44 (2) or
some other substantial reason of a kind such as to justify the dismissal of an
employee holding the position which the Applicant held. Subject to the
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Respondent doing that the Tribunal can then go on to consider the
reasonableness of the Respondent's actions in relying upon conduct or some
other substantial reason as a sufficient reason for dismissing the Applicant in
terms of Section 44 (3).
36.
The judgement of the Employment Appeal Tribunal in the case of British
Homes Stores Limited v Burchell EAT 1978 IRLR 379 has long provided
guidance as to the interpretation of the equivalent in English law of Section 44
of the Act in cases of suspected misconduct when an employee will not be
unfairly dismissed if the employer establishes
(1)
he genuinely believed in the employee's guilt
(2)
that he had reasonable grounds to sustain that belief and
(3)
that he had carried out as much investigation into the matter as was
reasonable in the circumstances
This three part test is known as the "Burchell test".
37.
It the case of Foley v The Post Office and HSBC Bank pic v Madden 2000
IRLR 827 CA the Court of Appeal held that the first part of the Burchell test
related to the reason for dismissal that the employer was to establish under
Section 44 (1) and (2) whilst the second and third parts are related to the
reasonableness of the dismissal under Section 44 (3) when it should also be
seen that the decision to dismiss fell within a band of reasonable responses on
the part of a reasonable employer. The band of reasonable responses test was
first formulated in the Employment Appeal Tribunal decision in Iceland Frozen
Foods v Jones 1982 IRLR which made it clear that Employment Tribunals
should not substitute their decision as to what was the right course to adopt for
that employee and that their function should be rather to determine if the
decision to dismiss the employee fell within the band of reasonable responses
which a reasonable employer might have adopted.
38.
The important point about the reasonableness test is that it is the employer's
conduct which the Tribunal has to assess, not unfairness or injustice to the
employee. This does not mean that injustice to the employee is completely
ignored. It is a clear principle of law that tribunals must not put themselves in
the position of employer and consider what they themselves would have done in
the circumstances. They must not usurp a function which is properly that of
management. Employers often have a range of reasonable responses to the
conduct or capability of an employee at their disposal. The range may be from
summary dismissal down to an informal warning. It is inevitable that different
employers will choose different options. It is in recognition of this fact and in
order to provide a "standard" of reasonableness that tribunals can apply the
"band of reasonable responses" approach.
39.
The Court of Appeal in the UK has also established that the "range of
reasonable responses" test applies both to the decision to dismiss and to the
procedure by which that decision is reached Sainsburys Supermarkets Ltd v
Hitt [2003J IRLR 23 CA.
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THE DECISION
40.
The first decision for the Tribunal is what was the reason for the dismissal, and in
this case, it did not present any difficulty. The Applicant did not challenge the
reason for the dismissal. He did of course challenge that the Incident had
happened. The Tribunal finds that the reason for the dismissal was the finding of
Mr. Giddens that the Applicant was guilty of being abusive, exhibiting threatening
behaviour and assaulting a young person in the Secure Unit on the 25 th August
2004 ("the Reason for Dismissal").
41.
The Tribunal finds that the Reason for Dismissal was a decision relating to the
conduct of the Applicant (Section 44(2)(b) of the Act) and that the Respondent
genuinely believed in the Applicant's guilt.
42.
The Tribunal then considered the reasonableness of the Respondent's actions in
relying on the Reason for Dismissal as being sufficient reason for dismissing the
Applicant. The Tribunal had to consider whether the Reason for Dismissal fell
within the band of reasonable responses which a reasonable employer might
have adopted.
43.
In this respect the Tribunal considered the evidence that was before Mr. Giddens
at the Disciplinary Hearing as detailed aforesaid. In essence, Mr. Giddens had
the evidence of DA and RN corroborated to some extent by Ms. Groarke.
Additionally Mr. Roberts knowing the two young people said he believed DA to
be telling the truth. Mr. Newbold and Ms. McBrier gave evidence they had
spoken to DA.
44.
The Police indicated they believed DA and RN. The Applicant made the point
that it was only the opinion of the police that DA and RN were telling the truth and
that only the opinion of a judge was of value. The role of the Police is not to
judge. Quite so. However the Tribunal takes the view that the Police are entitled
to comment on whether they think complainants are telling the truth. It must also
be remembered that RN was not the complainant. She was a witness with
therefore possibly less reason to tell lies. Additionally it will be remembered Mr.
Roberts believed DA was telling the truth.
45.
On the other hand, the Applicant gave evidence he did not do the acts
complained of. In a nutshell the weight of evidence was against him. In his letter
to the Applicant with the decision of the Disciplinary Hearing Mr. Giddens sets
out carefully and fully the reason for the decision with reference to the evidence
to support those decisions. These were thorough and reasoned.
46.
Given all the aforesaid the Tribunal finds that the decision of the Respondents to
Summarily Dismiss the Applicant fell within a band of reasonable responses
which a reasonable employer might have adopted. The Respondents had
reasonable grounds for sustaining their belief in the Reason for Dismissal.
9
47.
The Tribunal considered carefully whether the Respondents had carried out
sufficient investigation as was reasonable in the circumstances. The Tribunal
took the view that the Respondent had not done all they could in relation to
obtaining a full signed and dated statement from Ms. Groarke.
48.
Ms. Morgan sought to explain this lack away by saying the Police had told her
not to interfere but the Tribunal takes the view that it was open to the
Respondent to interview Ms. Groarke at the very outset even before Police
involvement and they had failed to do so. They certainly knew of her
involvement.
49.
The Applicant indicated Ms. Groarke was not in fact in Australia latterly as
indicated by the Police but there was no evidence before the Tribunal that the
Applicant had sought to persuade the Respondent to look for her on the Isle of
Man where he believed her to be.
50.
The Tribunal also took the view that the Respondent should have interviewed Mr.
Eddie Tinsley who was present at the Secure Unit when the alleged Incident took
place. However, the Tribunal also notes that at the Disciplinary Hearing the
Applicant (with his Union Representative) did not seek to introduce Mr. Tinsley
into the proceedings. The Tribunal finds this not to be a fatal flaw.
51.
The Tribunal does not seek to consider what it would have done in the
circumstances. The lack of full signed statements from Ms. Groarke at the outset
is regrettable and a shortcoming on the part of the Respondents. However the
Tribunal notes that there was evidence from Ms. Groarke and it was not the only
evidence against the Applicant. Furthermore at the time of the Disciplinary
Hearing it was open to the Applicant to indicate Ms. Groarke was on the Isle of
Man and he wanted an adjournment until the Respondent found her so that he
could cross examine her. The Applicant did not take this step and in fact there
was grave doubt that he even told Mr. Giddens that he believed the Police
information to be erroneous and that Ms. Groarke was seen locally. So far as the
Respondents were concerned Ms. Groarke was, effectively unobtainable.
52.
The Tribunal then considered the Disciplinary Hearing to see that it adhered to
the policy laid down by the Respondents. The Tribunal felt that Ms. McBrier
would have been better simply appearing as a witness of the Disciplinary Hearing
rather than presenting the case as well as that may give the impression of trying
to make efforts to ensure the case succeeded when giving the evidence.
However, the Tribunal notes the procedure laid down by the Respondents does
not preclude this and that the Applicant had opportunity to cross examine Ms.
McBrier. Bearing this in mind the Tribunal finds this not to be a fatal flaw in the
proceedings.
53.
The Tribunal learnt in evidence at the hearing that Ms. Morgan had discussed
with Mr. Giddens what the charges against the Applicant should be. Mr. Giddens
failed to remember this but the Tribunal does not lay any accusation of mendacity
10
at the feet of Mr. Giddens in this respect. Simple memory failure was likely. Mr.
Giddens then conducted the Disciplinary Hearing. Again this is not desirable but
certainly not fatal as Mr. Giddens would have had a sight of all the relevant
papers before the Disciplinary Hearing in any event.
54.
The evidence given to the Tribunal was that the Disciplinary Hearing was full and
thorough. In fact the Applicant made no complaint about the procedure at that
hearing per se neither did his Union Representative.
55.
The Applicant was very aggrieved at the delay in bringing his Disciplinary
Hearing and a delay there certainly was. The Tribunal finds it was not
unreasonable of the Respondents to abide by the wishes of the Police and not
proceed with their own investigation until the Police one had completed.
56.
The Tribunal also finds it was not unreasonable of the Respondents to seek to
rely on the Statements made by the relevant parties to the Police for the reasons
already cited. There is ample evidence in the form of letters that Ms. Morgan
persisted regularly in trying to get the statements and kept the Applicant
informed. The Tribunal finds that the delay in bringing the Disciplinary Hearing
was not the fault of the Respondents.
57.
Given the aforesaid the Tribunal finds that the amount of investigation carried out
by the Respondents fell within the band of reasonable investigation which a
reasonable employer might carry out.
58.
Thus, the Tribunal finds that the Applicant was not unfairly dismissed
(I,
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Signed .................
... .................. .
Sharon Roberts - Chair
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Dated ......................................
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Sent to Parties on .............................................
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Entered in Register ......\9.:~.\:.~
Clerk to the
.................... .
TribUnal.~........... .
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