Walsh v Belfast Metropolitan College [2020]

Posted In: Case Law
  • Decision Number
    14129/18IT
  • Legal Body
    Northern Ireland Industrial Tribunal (NIIT)
  • Type of Claim / Jurisdiction
    Unfair Dismissal, Disciplinary and Grievance Issues
Issues covered: Unfair Dismissal; Statutory Procedure; Automatically Unfair

The claimant was employed as a lecturer at the respondent further educational college.   There was quite a protracted history of conflict between the claimant and her line manager (Ms Gillespie).  This is evidenced by disciplinary procedures being mooted before an agreement as struck in June 2016 which wiped the slate clean.  However, a further issue arose after this agreement where the claimant complained to Ms Gillespie’s line manager and the Quality Unit of the College about the content of a course and that the college did not have examining authority for a particular course.   Ms Gillespie felt that this was the claimant seeking to continue the previous dispute where there had been the agreement.  In evidence, it was found that the claimant had not examined the prospectus that had been drawn up for the course before making her complaint.   When this complaint was brought to the Quality Unit, they stated that they had been totally misrepresented by the claimant and that they had wasted time on a ‘wild goose chase’ about whether the course was an NVQ or not. As a result, the Tribunal found that the complaints being raised were not motivated by any genuine concern about the nature of the course but was a continuation of her personal dispute.  

As a result, a complaint was raised about the conduct of the claimant.  This was an harassment investigation and not a disciplinary investigation.  In her response, the claimant suggested that Ms Gillespie should be retired and that she does not take responsibility for her own actions.  Disciplinary proceedings were recommended and they followed.  The first stage of the statutory procedure was outlined in that the disciplinary charges were sent to the claimant and was invited to a hearing.

In terms of the ‘hearing’, the claimant was invited to a Special Committee of the Governing Board where she had the opportunity to make representations.    However, this Special Committee did not have the power to make the final decision but instead sent a recommendation to the Governing Body for consideration.   The Governing Body made its decision on 9th January 2018 to dismiss the claimant but she had no opportunity to make representations.  The respondent argued that this still complied with the procedure in the Employment (NI) Order 2003 as it simply requires that the employee should be allowed to make representations and that it need not be to the individual actually making the decision.   The Tribunal found this assertion to be clearly wrong.  In terms of the third step of an appeal, the Tribunal found difficulty with the fact that nobody more senior could be found to make a decision.  There was an independent appeal by the LRA which upheld the appeal yet this was rendered ‘nugatory’ by the Tribunal on the basis that the Governors were able to dismiss the decision.   For this reason, it was held that the third step of the procedure had not been satisfied.

The Tribunal found the disciplinary procedure of the respondent peculiar, which was based upon a collective agreement that stated they were bound to adopt the appeals process.    The Tribunal made it clear that a collective agreement cannot usurp the statutory law.  For this reason, whilst there was a fair reason for the dismissal with conduct it was held to be automatically unfair due to steps two and three not being satisfied.

Practical Lessons

This case demonstrates the importance of ensuring that disciplinary procedures are kept up-to-date and within the statutory law.  The need for representations to be made to the actual body making the decision is one that will have a profound effect, especially in educational institutions where committees regularly make such decisions with a recommendation merely being made. As a result, Colleges may be well advised to review their procedures in light of this decision. 

Remedy

In a subsequent remedy hearing an order for resinstatement as sought by the Claimant was rejected.  A reivew of this remedy judgement is available here

 

This article is correct at 04/02/2020
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Jason Elliott BL
Barrister

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