Working with you is killing me
This is just one of the threats which Stephen Brown (the claimant), an employee of Down District Council, made to the solicitor acting for Down District Council (the respondent) on the 12th March 2012 when he phoned the solicitor, having previously made a phone call to the Human Resources Assistant employed by the Council.
In this BLOG I will discuss the issue as to whether the presence of an employee is absolutely required at a Disciplinary Hearing.
Background facts
In the Northern Ireland Industrial Tribunal case of Stephen Brown v Down District Council, decided on the 3rd May 2013, the claimant was an employee of the respondent since 1998, having been engaged as a toilet attendant. The claimant had experienced what, the Tribunal stated, could fairly be described as an unusual employment relationship with the respondent, having lodged four grievances with the respondent in the latter half of 2011 and having since 2001 lodged some eight tribunal claims against the respondent, not counting the present claim.
On 12 March 2012, the claimant had contacted a Human Resources Assistant and he admitted that, on the same day he telephoned the solicitor who was, at that stage, acting for the respondent in the tribunal claim which immediately preceded the present claim. During that call the claimant said:-
“People will end up getting killed.”
“The way I feel at the minute towards your client I want to execute them.”
“There is going to be a busy day at Roselawn because that is the way I am going, I am just going to go off on a spree here.”
“I just feel these people need to be executed.”
“Now the way I feel at the minute I need to kill these people, I just do.”
“I think, the way I feel at the minute, I think the only thing that will keep me right at the minute is to see all your clients lying dead.”
The claimant was reported to the PSNI. He was arrested and remanded in Maghaberry Prison without bail.
A disciplinary hearing to determine a charge of gross misconduct was held by the respondent while the claimant was detained in Maghaberry Prison with no definite release date. The claimant was notified of the hearing and advised that if he was unable to attend, he should submit representations in writing or should nominate a representative. The claimant did not participate in that disciplinary hearing by writing or by representative. The claimant was dismissed for gross misconduct. An appeal hearing, chaired by a Labour Relations Agency arbitrator, who sat with a trade union and management member, confirmed that dismissal.
The claimant lodged an Unfair Dismissal claim to the Industrial Tribunal.
Dismissal in the absence of the Claimant
One of the issues which the tribunal was required to consider was whether or not the respondent complied with the statutory dismissal procedure set out in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’), which required in the normal course, among other things, that an employee must be invited to attend a Disciplinary Hearing where he could answer charges made against him. Secondly, and separately from that issue of statutory procedure, the tribunal was required to consider whether or not the procedure adopted by the respondent was fair or unfair. Finally, the tribunal considered whether or not the decision to dismiss was in all the circumstances fair and, if not, whether or not a different and lesser penalty would have been appropriate.
In relation to the statutory dismissal procedure, the claimant alleged that the respondent was in breach of this procedure in that the disciplinary meeting held on 18 April 2012 had been held without the claimant’s attendance or participation.
The Claimant was in Prison during the Hearing
The claimant had been held without bail in Maghaberry Prison from shortly after 12 March 2012 and his incarceration continued at the time of the disciplinary hearing on 18 April 2012. It was also clear that the respondent knew on 18 April 2012 that that was the case. However Ms Miskelly of the Respondent wrote to the claimant on 15 March 2012 to advise him that allegations of gross misconduct against him in relation to his actions on 12 March 2012 would be investigated. The respondent wrote again to the claimant on 23 March 2012 to again provide him with an opportunity to respond to the investigation.
The respondent’s evidence was that both letters were sent to the claimant’s home address and also to Maghaberry Prison. Ms Miskelly wrote to the claimant on 11 April 2012 to notify him that the Disciplinary Hearing was scheduled to take place on 18 April 2012, some five weeks after the incident on 12 March 2012. That letter set out in clear terms two allegations of gross misconduct. The first allegation related to his conversation with the Council’s solicitor and the second allegation related to his conversation with the Human Resources Assistant. The letter stated that the respondent understood that it may have been difficult for the claimant to attend the hearing on 18 April 2012 but it positively invited a written submission or the attendance of a colleague or trade union representative to act on his behalf. The letter, again in clear terms, strongly advised the claimant to forward any evidence or to arrange any representation that he considered appropriate. He was also advised that if he were found to be guilty of gross misconduct his employment could be summarily terminated.
No acknowledgement or response was received from the claimant, or on behalf of the claimant, to these three letters.
The Tribunal’s Determination
The Tribunal determined that the 2003 Order required that the claimant should be notified of the disciplinary hearing. It did not require that an agreed date should be arrived at for the disciplinary hearing and it did not require that an employer should wait indefinitely to fix a disciplinary hearing where the employee is, for whatever reason, unable or unwilling to attend. The onus is placed on the claimant to ‘take all reasonable steps to attend the meeting’. In the circumstances, at the end of March 2012 and at the beginning of April 2012, the employer would not and could not have been aware of when the claimant might ultimately become available. That would depend on a range of factors; but ultimately on any decision by the PPS in relation to a prosecution, the timing of any prosecution, the decision of any Court in relation to bail, on the eventual disposition of any criminal charge and particularly on the claimant’s willingness to engage in the process.
The LRA Code provides at Paragraph 19 that an employee who cannot attend a meeting for good cause should notify the employer in advance. If the employee cannot attend for good reasons, the employer should re-arrange the meeting. If a representative or companion cannot attend, the meeting should be re-arranged for a date no more than five days after the date originally proposed by the employer. There is no requirement for a protracted procedure and the onus is placed firmly on the employee to engage and to request a short postponement. The claimant, in the present case, did neither and the tribunal concluded that he could have done so.
The tribunal was content in the circumstances that the respondent in this instance complied fully with the statutory dismissal procedure. The dismissal was therefore not automatically unfair. If the tribunal had reached a different conclusion on this point, it would have concluded that the result would have been no different if the disciplinary meeting had been delayed, at that stage indefinitely, to a date on which the claimant could have attended. The claimant had a full opportunity at the appeal stage and he did appear with the assistance of Unite. As far as the Tribunal was concerned, the circumstances of the dismissal were such, and the nature of the misconduct so clear, that the dismissal was undoubtedly fair.
Procedural Fairness
Turning to the question of procedural fairness as a question separate from compliance or non-compliance with the statutory dismissal procedure, the respondent conducted what appeared to the tribunal to have been a reasonable investigation of the events on 12 March 2013. The claimant failed to respond to two letters about the investigation process, or to assist that process in any way.
Only one factual incident was eventually challenged by the claimant. The content of the claimant’s telephone call with the respondent’s solicitor, and the clear threats made in that call by the claimant, were not disputed. The claimant however subsequently disputed the allegation of a threat made to the Human Resources Assistant on the same day, 12 March 2012. The tribunal believed that there was no reason why that Human Resources Assistant would have invented that threat. The threat was consistent with the claimant’s admitted concern about a manager’s actions. It was also consistent with the threats, which the claimant admitted, that he made shortly afterwards, to the respondent’s solicitor. The tribunal determined that the conclusion in the investigation report and subsequently in the disciplinary process that he had also issued a threat to the Human Resources Assistant was a reasonable and fair conclusion.
Allegation that the process was rushed and unfair
The claimant next alleged that the holding of the disciplinary hearing in these circumstances was rushed and unfair, in that he was unable to attend or to respond to the charges. The tribunal noted that the claimant had sacked his solicitor and counsel. None of this, in any event, explained why the claimant was not able to engage the services of his trade union or the assistance of a colleague by writing to them either directly or through the services of his solicitor. It did not explain the claimant’s failure to write directly to the respondent. The disciplinary charge clearly invited a written response or a representation and the claimant was clearly capable of providing this.
The tribunal did not accept that the respondent acted in any way unfairly in relation to the Disciplinary Hearing. The claimant was given a full and adequate opportunity to give his side of the case. A reasonable employer could not be expected, in such circumstances, where a clear and detailed threat to kill fellow employees had been received, to delay indefinitely its consideration of the matter. The respondent’s evidence, which the tribunal accepted, was that it had to balance its duty of care to the claimant with its duty of care to other employees and it had to ensure their safety. The claimant did not respond to its three letters and, in particular, did not request a postponement for a brief period to enable some form of representation to be arranged or to allow for his release on bail.
A Common Sense Approach
There is no doubt that the Tribunal was influenced in this instance by the fact that the claimant had made threats of violence against his fellow workers. This fact was not contested. Had this been contested the Tribunal’s approach to the case may have been different.
What is however noted is the common sense approach of the Tribunal to the case. Employers often tie themselves up in knots (and sometimes we lawyers are to blame!) worrying excessively whether the procedures to be adopted in a Disciplinary Hearing are going to land them in an expensive and long Tribunal Hearing. This is particularly the case where the Northern Ireland Statutory Dismissal Procedures require strict adherence, with heavy penalties applying in default of compliance.
Moral of the story for Employers
What an employer needs to bear in mind each time is that the employee should be given an adequate opportunity to reply to the Charges made against him. He should be given those Charges in writing. He should be allowed be invited to a Hearing and subsequently be advised of the Decision of the Employer in writing. He should be informed of his right of Appeal. If the employer complies with these principles he cannot go too wrong.
Moral of the story for Employees
If you expect to receive your statutory rights before an internal Investigation / Disciplinary Hearing don`t threaten to kill your employer or your work colleagues.