Review of Recent Unfair Dismissal Decisions in Northern Ireland

Today’s article covers two recent Court of Appeal decisions involving unfair dismissal claims.

In the first case, the Court of Appeal in Northern Ireland has considered the issue of a dismissal that was automatically unfair however compensation was reduced to nil because the employee had contributed 100% to his dismissal because of his alleged difficult personality and the impact this was having on working relationships within the workplace.

The second case is another recent decision from the Court of Appeal in relation to remedy including issues of reinstatement, incapacity and claims for personal injury relating to the dismissal.

Malcolm Colhoun v Schrader Electronics Limited 

A recent decision from the Court of Appeal in Northern Ireland has considered the issue of a dismissal that was automatically unfair however compensation was reduced to nil because the employee had contributed 100% to his dismissal because of his alleged difficult personality and the impact this was having on working relationships within the workplace.

Mr Malcolm Colhoun was employed by Schrader Electronics Limited as a Graduate Research and Development Engineer in June 2009.  On 11 May 2010, he showed a completed application form under the flexible working policy to his Line Manager, Mr Sam Porter.  The Tribunal stated that this was not intended to be a formal flexible working application at this stage.  The employee at this stage was seeking advice on how to proceed.  Mr Porter told the Claimant that he was unfamiliar with the process and that he would have to ask for advice on the form.  Mr Porter then advised him that there was a requirement of reference to a child in an application form for flexible working and that the childcare element in the application form should be explained.  The application for flexible working was for an alteration to the employee’s working hours to allow annualised working incorporating on average at least one day’s home working per week.  Mr Porter stated that having checked the position the application for home working was unlikely to be successful.  The employee decided nevertheless to proceed with his application.  This was handed to Mr Ivan Bailie, the Research and Development Manager, in or around mid-May 2010.  Mr Bailie did nothing in relation to the application.  He stated that the application was overlooked in his in-tray.  Nonetheless, a reminder was sent by the employee on 17 June 2010.  This coincided with the Claimant’s Annual Performance Review (APR).  The APR was a means by which the Respondent judged the progress that employees had made in the previous year and was a tool for giving encouragement in respect of good work done and advice as to how to improve performance.  The employee’s APR was largely favourable and met in every respect the basis standards of a first year Graduate Trainee.  He was recommended by Mr Porter for the maximum pay rise.

On the evening on 19 June 2010, the employee sent an e-mail to Ms McNeill, Head of Human Resources, complaining that his flexible working application had not been dealt with within the statutory timetable and noting the possible need for third-party intervention.  It was accepted this was a threat of proceedings.  He sent a further e-mail to Steve Thomson raising a grievance against Mr Porter.  He alleged that Mr Porter had lied in the APR when he stated that a deadline had been missed in relation to a project and that in fact he had delivered the project on time with absolutely no support or direction.  He accused Mr Porter of “blatantly lying and grossly misrepresenting his performance”.  The e-mail suggested that Mr Porter had acted maliciously and it accused him of dishonesty constituting gross misconduct under the disciplinary policy.

The Tribunal concluded that the content and wording of the grievance was extraordinary.  It also held that the content of the APR was almost completely favourable to the employee and given that he had been recommended for a full pay increase the Tribunal concluded that the attitude of the Claimant, in this case, demonstrated in his grievance and maintained thereafter was appalling and a “fatal blow to any ordinary working relationship” between the Claimant and his line management.

A grievance hearing took place on 20 June 2010 and was heard by Mr Thomson and Mr Robinson, at which the Claimant maintained his criticisms of Mr Porter and suggested that these were supported by four named workmates however when they were spoken to they denied that Mr Porter had been in any way unfair in his treatment of the Claimant and said that he got on well with the entire team.  The Claimant was given the outcome of the grievance on 5 July 2010 and he appealed on 14 July 2010. 

On 9 July 2010 the employee had a meeting with the HR department about his flexible working application and it was discussed with Mr Porter and Mr Bailie and it was considered that his absence from the workplace would cause a detrimental impact on performance in that a Design Engineer needs to be present in the laboratory to develop, organise and validate relevant tests, to provide support to other departments, to attend meetings and to receive training as a Trainee Engineer.  There was also perceived detrimental impact on ability to meet customer demand in that an on-site presence was required and a detrimental impact on quality in that home working would not allow for the assistance and the level of support that would be required as a Trainee.  This was communicated to him in a letter dated 28 July 2010.  It was accepted by the employer and the Tribunal that the application for flexible working was outside the statutory time limits and therefore the Tribunal awarded £2,280 to the employee by reason of the Respondent’s failure to properly process his applicable for flexible working.

On 20 July 2010 the Claimant noted a flash as a result of a faulty socket and he sent an e-mail to the Health and Safety Officer rather than reporting it to his relevant Line Manager stating that basic inspection of functionality testing had not been carried out.  The tone of the e-mail was highly critical. 

On 27 July 2010, the employee met with Mr Porter and Ms McNeill to seek to resolve the grievance informally.  No progress was made and the matter proceeded to hearing on 29 July 2010.  The employee maintained his stance that his Manager, Mr Porter, had behaved maliciously and dishonestly in his appraisal however his appeal on the grievance was dismissed on 5 August 2010 and the appeal for flexible working was also dismissed on 17 August 2010.

By letter dated 30 August 2010 the employee was invited to attend a disciplinary hearing to deal with the issue of the Claimant’s difficulty working personality, the impact this was having on working relationships and whether his future employment with the company was tenable in light of those factors.  The Tribunal in looking at the disciplinary interview concluded that the Claimant did not at any stage dispute that the issue of his personality, and the way in which he had interacted with others in the workplace, had been the subject of frequent discussion between him and his Line Managers in the course of his employment.  The issues read out by the Respondent at the disciplinary meeting were:

• Abrasive approach when dealing with people
• Confrontational approach
• Difficult personality to work with
• Difficulty establishing working relationships
• Inability to see that he may be wrong
• Unreasonably status conscious
• Inability to adhere to established business processes
• Lack of understanding of need to stick to timelines
• Lack of understanding of customer needs – blames others for own non-performance
• Standard response to direction is “I don’t agree”
• Arrogant
• Negative outlook with everything seen as a problem to him
• Routinely disagrees with management decisions
• Fails to take direction
• Needlessly critical of colleagues skills and abilities

The Tribunal concluded that the relationship between the Respondent and the Claimant deteriorated significantly from the 19 June 2010 when the Claimant lodged his grievance and the Tribunal said that the tone and attitude of the Claimant was appalling and was fatal to the maintenance of an ordinary working relationship.  The Claimant was dismissed on 10 September 2010 and it was noted by the Tribunal that during the appeal process the Claimant had not put forward any proposition that he wanted to modify or reform his approach or that he recognised that his behaviour had caused difficulty.  His appeal letter stated: “I wish to appeal this decision on the grounds that it was based entirely on unsubstantiated accusations, speculations and rumour”.

He did not accept that the grievance was inappropriate or extravagantly worded, he did not offer to withdraw his allegation against his Line Manager and his appeal was dismissed.  The appeal to the Court of Appeal was that the case as pleaded by the Respondent was that he was dismissed for some other substantial reason under Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996 and that the Tribunal’s conclusions were perverse however the Court of Appeal did not accept same and stated that the issue for the Tribunal was the fact of whether the relationship had broken down.  The Tribunal found that the letter inviting the Claimant to the disciplinary hearing did not state that this was a misconduct hearing.  The Tribunal was satisfied however that the employee was sufficiently on notice of the contention that there was an issue about the way in which he interacted with others in the workplace.  Although there was a lack of written records before the Tribunal to the degree that the Tribunal stated that “the approach of the Respondent was amateurish and slipshod”, the Tribunal recognised the extremely damaging terms of the grievance.  The Tribunal described the Respondent’s approach to training and supervising as shambolic but concluded that the employee had no real understanding of the difficulties he caused in the workplace and that he had no real intention of reforming those.  The Court of Appeal recognised that there is a difficulty in determining the appropriate label for a particular set of facts in reasons set out in Article 130 of the 1996 Order and the Court agreed that personality of itself cannot be a ground for dismissal but the manifestation of personality can result in conduct which can fairly give rise to a dismissal.  That was the case made by the Respondent.  The Court of Appeal upheld the decision of the Tribunal and found no grounds upon which it could be asserted that the decision was perverse.  The Court of Appeal stated that “The Tribunal was the expert industrial jury who were well placed to determine how the actions of this appellant affected his ability to continue to work in this workplace”.

David Lewis v McWhinney’s Sausages Ltd

Another recent decision from the Court of Appeal in relation to remedy including issues of reinstatement, incapacity and claims for personal injury relating to the dismissal (David Lewis v McWhinney’s Sausages Ltd)

This case was brought by way of an appeal to the Northern Ireland Court of Appeal on the issue of remedy.  The Tribunal found that the Claimant had been unfairly dismissed by a decision dated 7 March 2011.  The Claimant was awarded £3,134.37 which comprised a basic award of £1,050.93 and a compensatory award of £1,783.44 (this was a compensatory award for nine weeks from 1 February 2011 until 1 April 2011).  The appeal was on four points:

1. That reinstatement was the proper remedy.
2. That there ought to have been a statutory uplift pursuant to Article 17 and Schedule 1 of the Employment (Northern Ireland) Order 2003 as a result of the alleged failure of the Respondent to comply with the statutory procedure in relation to dismissal.
3. That the manner of dismissal was such as to entitle the Claimant to aggravated damages in the sum of £9,000 and damages for injury to feelings.
4. It was contended that the decision of the Tribunal on remedy was in any event perverse.  In this regard, it was submitted that the Tribunal had unfairly penalised the Claimant for not making any applications for employment or fully mitigating his loss.  In addition, the Tribunal ought not to have placed any reliance upon the Claimant’s own determination of the extent to which depression and pain were implicated in his incapacity for work.

The facts of the case are that the Claimant was dismissed for failing to following company procedures by being absent for two days after a meeting on 18 May 2010 without contacting the Respondent, gross insubordination by his behaviour at the meeting on 18 May 2010 and walking out of the workplace on 18 May 2010 without permission and by refusing to follow a reasonable work instruction in relation to a request for authorisation to obtain a GP report for his employer.

The Claimant had sustained a personal injury in the workplace and had returned to different duties however the Respondent had wished to obtain further information in relation to the injuries.  One of the issues in the case was to the extent to which the Claimant was incapable of engaging in remunerative employment and the reasons for same.  At the Tribunal hearing, the Claimant was represented by a Mr Meeks who had stated that the Claimant was seeking reinstatement however after further discussion at the Tribunal it was clear that reinstatement was not practicable as it was apparent that mutual trust and confidence had broken down between the Claimant and the Respondent and therefore the Tribunal claim proceeded on the basis that compensation was the only remedy available.

The Tribunal found as a matter of fact that the Claimant was fit to work from 1 December 2010 however he did not apply for any state benefits but rather relied on monies loaned to him.  He subsequently applied for Jobseekers Allowance which he received from 8 February 2011 at £65.45 per week and from 12 April 2011 at £67.50 per week.

He was still on Jobseekers Allowance at the date of the hearing.  There was no evidence before the Tribunal that the Claimant had applied for any work after 1 December 2010.  The Claimant had indicated to the Tribunal that his prospects of securing any job were very poor and it was contended that the employment prospects in the locality were extremely poor.  The Claimant also made available to the Tribunal a letter from Dr Logan dated 8 August 2011 which stated that his attendance at the surgery following an accident at work was treatment for pain, stress and depression and stated that this treatment is ongoing.  The Claimant provided no other medical evidence in the course of the hearing in relation to his incapacity to work.

In relation to the period from 27 May 2010 to 1 December 2010, the Tribunal did not have clear and cogent medical evidence and had difficulty in identifying the extent of the Claimant’s unfitness to work that was attributable to his dismissal, to his injury at work for which he had already received compensation, and other factors such as matrimonial difficulties that he described in evidence.  The letter provided by Dr Logan did little to assist in establishing any causal connection between the Claimant’s difficulties and his dismissal.  There was evidence of the medication prescribed to the Claimant prior to his dismissal but the dismissal could not be causally connected to such medication or the condition underlying it.  When asked to apportion his unfitness to work between his personal injury and the anxiety and depression stemming from dismissal, the Claimant had estimated an apportionment of 50/50 and so himself had not sought to attribute the entirety of his incapacity to his dismissal.

In relation to the four issues before the Court of Appeal:

1. Reinstatement – the Court of Appeal stated the important issue of principle is that re-employment may be rendered impracticable because of the loss of the necessary mutual trust and confidence between employer and employee.  In this case the Tribunal expressly found that mutual trust and confidence had entirely broken down as a result of which reinstatement was not practicable.  The Tribunal noted that that the Claimant realistically accepted this to be the case.  The Court of Appeal stated that the circumstances in which an Appeal Court will interfere with a reinstatement decision on perversity are very limited and held that there was no error of law in this case.
2. Statutory uplift – the Court stated that in complying with the three step procedure the employer had to set out in writing the grounds which led him to contemplate dismissing the employee.  Under the second step the grounds are simply the matters which had let the employer to contemplate dismissal for the stated grounds.  The objective is to ensure that the employee is not taken by surprise and is in a position to deal with the allegations.  The Court held that the letter of 20 May 2010 identified the occasion on which the alleged insubordination occurred and identified verbal abuse as the nature of the insubordination.  The letter was sent two days after the meeting of which the complaint was made so the Claimant was in a good position to contradict any alleged statement or explain anything said to him.  In those circumstances the letter satisfied both these tests so there was no failure to comply with statutory procedures in this case.
3. Damages for non-economic loss – the Court considered the Norton Tool Co Ltd v Tewson and Johnson v Unisys Ltd decisions together with the Dunnachie v Kingston-upon-Hull City Council 2004 decision were Lord Steyn noted that the word loss had the plain meaning which excludes non-economic loss.  It does not cover injury to feelings.  The existing law is that loss does not include aggravated or exemplary compensation.  Therefore the claim for non-economic loss failed.
4. Perversity – the legal test in a perversity appeal has been stated in many different forms.  The Court of Appeal stated Crofton v Yeboah 2002 “Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has grave doubts about the decision of the Employment Tribunal, it must proceed with great care”.  The Claimant argued in this case that he had been heavily penalised for not making any application for employment or fully mitigating his loss.  It was, however, accepted that he should have applied for Jobseekers Allowance as soon as he was eligible.  The Court of Appeal accepted that a different Tribunal may have taken another view about the Claimant’s failures but that that was not sufficient to render the decision perverse.  Furthermore the Court did not accept that there was any criticism to be made of the Tribunal for relying on the Claimant’s own evidence that his incapacity for work ought to be attributed 50/50 between his physical and depressive symptoms.  The Claimant was clearly advised of the need to provide full and detailed evidence dealing with incapacity and had clearly chosen not to do so.  The medical evidence that the Claimant tried to introduce in his appeal did not help his submission.  The medical evidence showed that he was suffering from physical and depressive symptoms prior to his decision to come out of work on 18 May 2010 and that these continued.  There was a requirement for an urgent mental health assessment on 10 November 2010 but this was related to personal problems and unconnected with his work. 

The Court of Appeal accepted that this was a difficult exercise for the Tribunal and stated that their approach was one which fell “well within the area of judgment open to them”.  The Claimant’s appeal was dismissed in its entirety.