Unfair Dismissal and Employer Discretion in Northern Ireland: A Case Study, Lecture notes of Law

Download Unfair Dismissal and Employer Discretion in Northern Ireland: A Case Study and more Lecture notes Law in PDF only on Docsity! 1 TERMINATION OF EMPLOYMENT: THE LAW IN NORTHERN IRELAND 1. In Northern Ireland statutory protection against unlawful dismissal is found primarily in Part XI of the Employment Rights (NI) Order 1996. 2. The statutory definition of a ‘dismissal’ is found in Article 127. It includes the termination of a fixed term contract, a constructive dismissal and a forced resignation. 3. Article 126 provides for the right not to be unfairly dismissed. Preserving the industrial balance, the statutory framework at Article 130 provides a statutory power to dismiss on specific grounds, subject to the requirements of reasonableness and fairness. 4. Articles 126-130 provide protection from unfair dismissal for employees with one year continuous service. 1 5. There is also protection against automatically unfair dismissal i.e. protection against dismissal where the employer has dismissed the employee for a proscribed reason e.g. pregnancy, non payment of the minimum wage or making protected disclosures (whistleblowing). 2 Generally automatically unfair dismissal protection does not require a qualifying period of service. 3 6. On the concept underlying automatically unfair dismissal, ACL Davies states: 1 Article 140(1) 2 See Articles 130B to 137. 3 In most cases; one important exception is under TUPE; one years service is required to avail of protection - see regulation 7. 2 Automatically unfair reasons are those which can never be relied upon by the employer, whatever the circumstances….. They reflect the argument … that certain grounds for dismissal violate the employee’s dignity and should not be permitted. They also reflect the role of unfair dismissal law in protecting other fundamental rights such as the right to the minimum wage. There is little point in providing employees with these rights if the employer is allowed to dismiss them whenever they bring a claim. 4 7. In passing it is of course the case that a dismissal can be unlawful by reason of it being a discriminatory dismissal e.g. on the grounds of religious belief or gender. This talk focuses on unfair dismissal law. POTENTIALLY FAIR DISMISSAL 8. The concept of ‘fairness’ appears premised upon the idea or concept that an employer should only be required to retain employees where there is a job for them to do, they are fit and able to do the job and they are not guilty of misconduct meriting dismissal; but that if those boxes are ticked employees should generally have the right to continue in their employment. 9. To establish that a dismissal is a potentially fair dismissal the employer must demonstrate a fair ground for the dismissal Article 130(1). 10. Article 130(1-2) provides for five ‘fair’ grounds for dismissal: a. Capability; b. Misconduct; c. Redundancy; d. Contravention of a statutory provision; e. Some other substantial reason. 4 Perspectives on Labour Law; Cambridge University Press; [2004] page 165 5 18. In an unfair dismissal claim the Industrial Tribunal adjudicates upon the lawfulness of the dismissal, applying the legislation referenced above. It is for the Industrial Tribunal to determine if there has been a fair dismissal. 19. The hearing is not an appeal involving a re-hearing of the evidence and the Tribunal taking a fresh decision. 20. In Iceland Frozen Foods v Jones [1983] ICR 17 the employee, a night shift foreman, was dismissed for misconduct. The tribunal found the dismissal unfair by considering whether in their opinion the employer had acted reasonably and found that the employees misconduct was not sufficiently serious to warrant dismissal. The Employment Appeal Tribunal overturned the decision asserting that the correct test was whether the employer’s decision to dismiss fell within the band of reasonable responses to the employees conduct which a reasonable employer could adopt. A Tribunal must not substitute its view of the case where an employer has acted within the band of reasonableness. The EAT stated as follows: 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 Act of 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 *25 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 circumstance 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. …….. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the 6 principle in N. C. Watling & Co. Ltd. v. Richardson [1978] I.C.R. 1049 or Rolls-Royce Ltd. v. Walpole [1980] I.R.L.R. 343 . 21. This was a seminal decision and the tribunals and courts have generally interpreted the legislation on this basis ever since. In Northern Ireland the test received the approval of the Court of Appeal in the case of Citybus Limited v Dobbin [2008] NICA 42 where it overturned a Tribunal finding that Mr Dobbin had been unfairly dismissed. 9 22. In Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 the Lord Chief Justice endorsed the Iceland Frozen Foods decision and the law as subsequently set out by Higgins LJ in the Dobbin case. 23. ACL Davies comments that this Iceland Frozen Foods based jurisprudence …suggests that the employer has a large area of discretion when deciding how to respond to the situation and that the tribunal should only interfere when the employer’s reaction is extreme. The approach is analogous to the test of Wednesbury unreasonableness in administrative law. It has led many commentators to suggest that tribunals are not performing their intended role under the Act. Instead of setting standards for employers which indicate how employees’ dignity and autonomy should be respected, tribunals are simply reflecting normal behaviour on the part of employers. Thus, if it is ‘normal’ for employers to dismiss employees for behaviour which takes place outside working hours and does not impinge on their work, for example, this will be a fair dismissal even though it is arguably an infringement of those employees’ autonomy.” 10 24. The jurisdiction of a tribunal under Part XI of the 1996 Order appears to fall somewhere between that of a court hearing an appeal on law and facts (e.g. a High Court hearing a County Court appeal) and a judicial review court; whilst the Tribunal hears evidence and reaches factual findings, its focus is whether the employer acted within the band of reasonableness in treating the reason as sufficient to dismiss the 9 See case-note commentary attached. 10 Page 166. 7 employee, not its own view as to the reasonableness or otherwise of the dismissal in all the circumstances. 11 25. Whether an employer has acted reasonably i.e. within the band of reasonable responses, or unreasonably is a matter of fact and law. The Tribunal must properly determine the scope of the band of reasonableness and whether the employer’s decision falls within or without. In Dobbin the Court of Appeal found the Tribunal’s band of reasonableness too narrow impermissibly excluding a reasonable dismissal by Citybus. 26. Where an employer has dismissed an employee for a potentially fair reason (under article 130(1-2), the Tribunal may only reach a substantive finding of unfair dismissal where no reasonable employer would have dismissed the employee in all the circumstances (article 130(4)) . This gives employers some leeway in terminations: it does not matter if an employer could or should have given the benefit of the doubt to the employee as long as dismissal was within the ‘band’ of reasonableness; this applies even if the decision was ‘barely’ reasonable i.e not unreasonable in all of the circumstances. 27. Nonetheless questions of reasonableness and fairness lie within the jurisdiction of the Tribunal i.e. the circumscription of the boundaries of reasonableness and whether or not the dismissal lies within or outwith such boundaries. In setting those boundaries the Tribunal will take into account case law and other relevant material such as Labour Relations Agency Codes of Practice. 11 One suggestion is that the law should adopt a proportionality test. Collins Ewing McColgan Labour Law Cambridge University Press 2012 at page 832. 10 therefore remind ourselves of the principles governing the role of this court when the factual findings of a Tribunal are criticised. These were conveniently drawn together by Coghlin LJ in the appeal to this court in Mihail v Lloyds Banking Group [2014] NICA 24 at paragraph [27]: “"This is an appeal from an Industrial Tribunal with a statutory jurisdiction. On appeal, this court does not conduct a re-hearing and, unless the factual findings made by the Tribunal are plainly wrong or could not have been reached by any reasonable tribunal, they must be accepted by this court. (McConnell v Police Authority for Northern Ireland [1997] NI 253 per Carswell LCJ; Carlson Wagonlit Travel Limited v Connor [2007] NICA 55 per Girvan LJ at paragraph [25]. In Crofton v Yeboah [2002] IRLR 634 Mummery LJ said at paragraph [93] with reference to an appeal based upon the ground of perversity: ‘'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 the cases where the Appeal Tribunal has “"grave doubts”" about the decision of the Employment Tribunal, it must proceed with “"great care”", British Telecommunications PLC v Sheridan [1990] IRLR 27 at para [34].’' In Curley v Chief Constable of the PSNI [2009] NICA 8 this court observed at paragraph [14]: ‘'It is clear from the relevant authorities that the function of this court is limited when reviewing conclusions of facts reached by the Tribunal and that, provided there was some foundation in fact for any inference drawn by a Tribunal the appellate court should not interfere with the decision even though themselves might have preferred a different inference….’'”" 35. Ultimately whether a ground of appeal is a question of fact or law is a question of law for the Honourable Court. Moreover whether any finding of fact falls within the band of permissibility or is perverse is a matter for the Honourable Court. In reaching its determinations of course the Honourable Court must itself act lawfully. 36. Consequently once a Tribunal has reached a finding of fact, it becomes more difficult for an unsuccessful litigant to overturn such a finding and succeed in the litigation 11 unless there is a reasonable prospect of establishing perversity. It could be said that the approach of the Court is reminiscent of the ‘margin of appreciation’ doctrine in human rights law. 13 Cases such as Stadnick-Boroweic and Mihail appear to indicate that the Court is disinclined to interfere with a Tribunal’s factual findings unless it is persuaded that the Tribunal manifestly erred in fact and in law. Indeed it is worth quoting Lord Denning in the Hollister case on this point: In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there — to see if one can find some little cryptic sentence. 14 37. It is much easier to win an appeal where the Tribunal has made an error in its interpretation and application of relevant law; or where it has failed to provide adequate reasons for its decision as required by law; 15 or where it has failed to address all of the issues. 13 See for example Pace Telecom Ltd v McAuley [2011] NICA 63 and paragraphs 19-24 of that decision where the Court recognized the decision of the Tribunal was far from perfect but was not persuaded the inadequacies were sufficient to make the decision wrong in law. 14 Hollister v National Farmers Union [1979] ICR 542 at 533 15 For example McCann v Extern [2014] NICA 65 Reasons - Regulation 30.—(1) A tribunal or chairman must give reasons (either oral or written) for any – (a)decision; or (b)order, if a request for reasons is made before or at the hearing at which the order is made. (2) Reasons may be given orally at the time of issuing the decision or order or they may be reserved to be given in writing at a later date. If reasons are reserved, they shall be signed by the chairman and sent to the parties by the Secretary. (3) Where oral reasons have been provided, written reasons shall only be provided – (a)in relation to decisions if requested by one of the parties within the time limit set out in paragraph (5); or (b)in relation to any decision or order if requested by the Court of Appeal at any time. (4) When written reasons are provided, the Secretary shall send a copy of the reasons to all parties to the proceedings and record the date on which the reasons were sent. Written reasons shall be signed by the chairman. (5) A request for written reasons for a decision must be made by a party either orally at the hearing (if the decision is issued at the hearing), or in writing within 14 days of the date on which the decision was sent to the parties. This time limit may be extended by a chairman where he considers it just and equitable to do so. (6) Written reasons for a decision shall include the following information – (a)the issues which the tribunal or chairman has identified as being relevant to the claim; (b)if some identified issues were not determined, what those issues were and why they were not determined; (c)findings of fact relevant to the issues which have been determined; 12 RESTRUCTURING AND REDUNDANCY 38. The first of the two ‘potentially’ fair reasons for dismissal addressed in this talk is redundancy. Redundancy is defined in Article 174 of the 1996 Order: Redundancy 174.—(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a)the fact that his employer has ceased or intends to cease— (i)to carry on the business for the purposes of which the employee was employed by him, or (ii)to carry on that business in the place where the employee was so employed, or (b)the fact that the requirements of that business— (i)for employees to carry out work of a particular kind, or (ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish. (2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them). (3) Where— (a)the contract under which a person is employed is treated by Article 171(5) as terminated by his employer by reason of an act or event, and (b)the employee's contract is not renewed and he is not re-engaged under a new contract of employment, he shall be taken for the purposes of this Order to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in sub-paragraphs (a) and (b) of paragraph (1). (4) In its application to a case within paragraph (3), sub-paragraph (a)(i) of paragraph (1) has effect as if the reference in that paragraph to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed. (5) In paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason. 39. There are four main types of redundancy situation: a. a disappearing business; b. a disappearing business at a particular location; (d)a concise statement of the applicable law; (e)how the relevant findings of fact and applicable law have been applied in order to determine the issues; and (f)where the decision includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated. 15 to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. 3 Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. 4 The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. 5 The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim'.' 47. These guidelines have been expressly approved by the Northern Ireland Court of Appeal in Robinson v Carrickfergus Borough Council [1983] IRLR 122. Breach of the guidelines does not necessarily mean a dismissal is unfair. 18 48. As already discussed above, the question for a Tribunal is not whether there was a fairer means of approaching the pool selection. Rather it is determining whether the Respondent approach is outside the band of reasonableness and ‘unfair’ for the purposes of Article 130(4). 49. In Shorts Brothers Plc v McCormick [2010] NICA 14, the Court of Appeal reversed a Tribunal determination that Mr McCormick had been unfairly selected for 18 Employment Law An Adviser’s Handbook, (Tamara Lewis) LAG Eleventh Edition [2015] page 276. 16 redundancy. The case demonstrates the breadth of discretion accorded by the law to employers when selecting employees for redundancy. 19 50. In Capita Hartshead Ltd v Byward [2012] IRLR 814 the Claimant was one of a number of actuaries but was made redundant in a pool of one. The Tribunal found that by confining the pool to the Claimant the Respondent had unfairly selected her for redundancy. The EAT upheld the Tribunal’s decision and Silber J carefully reviewed the authorities and set out the applicable principles in redundancy pool selection cases including a core principle that the employer must genuinely apply its mind to the issue: Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates who are candidates for redundancy are that . 
 (a) 'It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted' (per Browne-Wilkinson J in Williams v Compair Maxam Ltd [1982] IRLR 83 [18]); . 
 (b) '[9]...the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn' (per Judge Reid QC in Hendy Banks City Print Ltd v Fairbrother [2005] All ER (D) 142 (May)); . 
 (c) 'There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem' (per Mummery J in Taymech Ltd v Ryan [1994] EAT/663/94, 15 November 1994, unreported); . 
 (d) The employment tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has 'genuinely applied' his mind to the issue of who should be in the pool for consideration for redundancy; and that 
 (e) Even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it. 51. In a test case before the Industrial Tribunal, Marie Neill v British Airways PLC, the claims in respect of a redundancy exercise which allegedly was unfair and 19 See case-note commentary attached. 17 discriminatory because of the employees included and excluded from the redundancy pool were dismissed. 20 52. The principle of ‘bumping’ emanates from the case Thomas & Betts Manufacturing Ltd v Harding [1980] IRLR 255 where Mrs Harding had worked as a packer but later primarily worked on fittings. She need for fittings decreased and she was dismissed for redundancy. The Tribunal found that the dismissal was unfair because she should have been considered for packing work even if that would have meant dismissing a more recently recruited packer. The EAT and the Court of Appeal upheld the Tribunal’s decision. The principle of bumping is not particularly popular with Tribunals: in Byrne v Arvin Meritor LUS (UK) Ltd UKEAT/0239/02 Burton P put it thus: ''The obligation on an employer to act reasonably is not one which imposes absolute obligations, and certainly no absolute obligation to “bump”, or even consider “bumping”. The issue is what a reasonable employer would do in the circumstances, and, in particular, by way of consideration by the Tribunal, whether what the employer did do was within the reasonable band of responses of a reasonable employer?'' 53. The employer must consider the question of suitable alternative employment.(Vokes v Bear [1973] IRLR 363) What constitutes suitable alternative employment is fact specific. In defending an unfair dismissal claim brought on this claim, the employer will seek to establish that such consideration occurred and/or there were no suitable alternative vacancies. 54. Individual consultation: an employer is expected to enter into consultation with any employee who is being considered for redundancy. Such consultation should be meaningful and adequate. (Mugford v Midland Bank plc [1997] IRLR 208) A 20 [2014] NIIT 20 60. A claim in Northern Ireland against a solicitors firm who operated such a process was unsuccessful. 24 Whilst the practice has been broadly approved by Tribunals to date but the law remains uncertain as discussed at some length in Harvey on Industrial Relations and Employment Law Part D1 paras 1724-1725. SOME OTHER SUBSTANTIAL REASON: ORGANISATIONAL / BUSINESS REASONS 61. Article 130 reads as follows: 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. 62. Both redundancy and some other substantial reason (SOSR) are potentially fair reasons for an economic dismissal. SOSR will cover most economic dismissals that do not fall within the category of redundancy. 63. The type of reason which the employer needs to put forward was described in the case of Hollister v National Farmers Union [1979] ICR 542 as a ‘sound good business reason’. The burden of proof on the employer is easily met. 25 64. The Applicant Hollister who worked in Cornwall was employed on different terms and conditions than other group secretaries working elsewhere for the National Farmers Union. He complained that his terms were inferior and the employer harmonized the Cornwall branch’s terms in line with those of other branches. The 24 Thomas McKeever v Patrick McCollum t/a McCollum and Company Solicitors (Respondent) [2012] NIIT 25 Banerjee v City and East London Area Health Authority [1979] IRLR 147 21 Applicant refused to sign the new contract because he believed the terms were still not adequate. The Court of Appeal found that the re-organisation of the business which the employers had felt obliged to undertake, coupled with the applicant's refusal to accept the new contract, had rightly been found by the tribunal to be a “substantial reason of a kind such as to justify the dismissal”. Lord Denning stated: The question which is being discussed in this case is whether the reorganisation of the business which the National Farmers' Union left they had to undertake in 1976, coupled with Mr. Hollister's refusal to accept the new agreement, was a substantial reason of such a kind as to justify the dismissal of the employee. Upon that there have only been one or two cases. One we were particularly referred to was Ellis v. Brighton Co-operative Society Ltd. [1976] I.R.L.R. 419 , where it was recognised by the court that reorganisation of business may on occasion be a sufficient reason justifying the dismissal of an employee. They went on to say, at p. 420: “Where there has been a properly consulted-upon reorganisation which, if it is not done, is going to bring the whole business to a standstill, a failure to go along with the new arrangements may well — it is not bound to, but it may well — constitute ‘some other substantial reason.’” Certainly, I think, everyone would agree with that. But in the present case Arnold J. expanded it a little so as not to limit it to where it came absolutely to a standstill but to where there was some sound, good business reason for the reorganisation. I must say I see no reason to differ from Arnold J.'s view on that. It must depend on all the circumstances whether the reorganisation was such that the only sensible thing to do was to terminate the employee's contract unless he would agree to a new arrangement. It seems to me that that paragraph may well be satisfied, and indeed was satisfied in this case, having regard to the commercial necessity of rearrangements being made and the termination of the relationship with the Cornish Mutual, and the setting up of a new relationship via the National Farmers' Union Mutual Insurance Society Ltd. On that rearrangement being made, it was absolutely essential for new contracts to be made with the existing group secretaries: and the only way to deal with it was to terminate the agreements and offer them reasonable new ones. It seems to me that that would be, and was, a substantial reason of a kind sufficient to justify this kind of dismissal. I stress the word “kind.” 65. SOSR is not confined to economic dismissals. It was a ground of dismissal in the recent case Dr Stadnick-Borowiec v Southern Health and Social Care Trust and Health and Social Care Board [2016] NICA 1 where the Trust could not accommodate the training requirements placed on the Appellant’s registration by the General Medical Council. 22 66. However the provision of a sound business reason only raises a potentially fair reason for dismissal – that does not mean the dismissal is fair in terms of the tests of reasonableness, equity and substantial merits. 67. In Evans v Elemeta Holdings Ltd [1982] IRLR 143 the employee was offered new terms, as part of a reorganization which would have required him to work overtime unpaid up to an unspecified number of hours per week. He claimed constructive dismissal and the EAT found that the unreasonableness of the terms made the dismissal unfair. The Transfer of Undertakings (Protection of Employment) Regulations 2006 68. TUPE 2006 applies in NI. 26 For our purposes the key provision is regulation 7. It is automatically unfair for the transferor or transferee to dismiss an employee if the sole or principal reason is the transfer, or a reason connected to the transfer. 27 69. It is not automatic unfair dismissal if the sole or principal reason for dismissal is an economic technical or organization reason (ETO) connected to the transfer entailing changes in the workforce. 28 The dismissal must involve changes to the overall numbers of the workforce. 29 70. Two recent cases are worth considering in some detail to illustrate the application of the TUPE regulations to termination scenarios. In Manchester College v Hazel and another [2014] ICR 989 a large number of staff teaching and training in prisons had disparate contracts. The work was transferred to Manchester College. Trying to 26 Note that the changes introduced in England and Wales in 2014 do not apply to Northern Ireland. 27 See footnote 23 28 The Transfer of Employment (NI) Regulations 2006, regulation 7(1). 29 Delabole Slate Ltd v Berriman [1985] IRLR 305; Nationwide Building Society v Benn [2010] IRLR 922; Manchester College v Hazel [2014] IRLR 392. 25 CASENOTE COMMENTARIES MISCONDUCT Dobbin v Citybus Limited [2008] NICA 42 The Claimant/Appellant Mr Dobbin was employed for some 27 years and was a Bus Inspector. He worked alongside another inspector Mr Best. They had fallen out. Mr Best made a complaint of harassment against Mr Dobbin relating to a number of incidents where Mr Dobbin had allegedly behaved in an inappropriate manner: leaving a course when Mr Best appeared; reneging on offer of holiday relief for Mr Best; telephoning Mrs Best to tell her how annoyed he was with her husband; making a comment that Mr Best had pocketed money raised to buy another employee a gift and instead of using the money to buy a gift, presented him with a crystal bowl which Mr Best already possessed; and, using a third party to place pressure on Mr Best during the course of the investigation with threats of disclosure of certain information. Mr Dobbin admitted most if not all of the allegations but sought clemency by reason of his service and good previous character. However he was dismissed for gross misconduct for ‘serious and persistent’ harassment. The Industrial Tribunal found that he was unfairly dismissed but reduced his award for contributory fault. The Tribunal found the dismissal was outside the band of reasonableness being both procedurally and substantively unfair: procedural unfairness (a) there was a lack of impartiality on the part of the disciplinary panel (who had both been involved in the investigation); (b) there had been a failure to properly or adequately investigate how the crystal bowl rumour had been started / spread / disseminated; (c) that Mr Dobbin’s allegations about the crystal bowl were largely made in the course of the investigation, i.e. in the course of answering questions put by investigators; (d) there was a lack of impartiality on the part of Mr O’Neill the manager who heard the first appeal (i.e. he failed to tell Mr Dobbin that he had spoken to Mr Best and what had been said in the conversation); (e) Mr O’Neill had failed to disclose new material to Mr Dobbin which he had taken into account in his decision; (f) that the offences ought to have been dealt with as major misconduct rather than gross misconduct under the relevant procedures; (g) that the second appeal was limited in its purview and had failed to cure the flaws in the investigation identified above; substantive unfairness 26 (h) similar acts of misconduct had been committed by other employees and no action was taken – i.e. there was a lack of consistency; (i) the classification of Mr Dobbin’s actions as serious and persistent acts of harassment did not appear objectively justified i.e. that any harassment was less serious / more low level; (j) Mr Dobbin never admitted spreading the rumour to other employees; (k) that there was no consideration given to alternative penalties particularly given his length of service and contribution to the Company over the years; The Court of Appeal overturned the decision of the Tribunal, its decision is set out in two paragraphs: [58] In the light of those observations relating to the law I turn to consider the Tribunal's decision in the instant appeal. As the respondent had admitted the conduct, the only question for the Tribunal was whether the investigative processes and the disciplinary hearings and appeals were, viewed objectively, within the band of responses by a reasonable employer and whether the decision to dismiss was, similarly viewed, within the band of reasonable responses of a reasonable employer. It is clear that the Tribunal on occasions substituted its own view for that of the reasonable employer – see the many issues mentioned earlier in paragraphs 11 to 16. I mention several of them now. In considering the nature of the conduct which the respondent admitted the Tribunal concluded that undoubtedly there were acts of harassment but they occurred over a short duration and that apart from the comment relating to the retirement gift it was generally of a low grade nature. In addition the Tribunal introduced a comparison with the Platform Agreement, which was irrelevant. Similarly in its treatment of the procedures and appeals the Tribunal expressed its own views as to the correctness of the procedures and the nature of the appeals. The Tribunal concluded that there was a lack of fairness about the process but did not identify how, if at all, the respondent was prejudiced. The appeal to Mr Hesketh was deemed inadequate without reference to and appreciation of, the nature of that appeal. Nowhere in the decision was the conduct relating to the retirement acknowledged for what it was – a serious allegation of theft against a fellow employee. 
 
 [59] This was a fairly simple case. The conduct was admitted. The only issues were whether the procedures adopted and the decision to dismiss lay within the band of reasonable responses of a reasonable employer. Clearly both were and the Tribunal should have so found. [my emphasis] COMMENT The issue in both the Tribunal and the Court was whether the dismissal was procedurally and/or substantively fair. The Tribunal found that the dismissal fell outside the band of reasonableness for the reasons set out above. However the Court, placing weight on Mr Dobbin’s admissions and its perception of the gravity of the misconduct, found the dismissal was within the band of reasonableness. The Court found that in circumstances where an employee made a serious allegation of theft against a colleague, the employer was entitled to classify it as gross misconduct warranting dismissal, and any concerns of procedural unfairness could be discounted because they would have made no difference to the outcome. Was the Court not entitled to reach such a finding? Alternatively, was it not open to the Tribunal to form the view that no reasonable employer would have dismissed Mr Dobbin in all the circumstances (i.e. that it was substantively unfair to dismiss him)? Was dismissal not a disproportionate sanction? Moreover, could it properly be said that the significant findings of procedural unfairness reached by the Tribunal were irrelevant in all of the circumstances. 27 Given the Court’s findings that the Tribunal acted erroneously on various issues, a better outcome might have been for the Court to have either remitted the matter for reconsideration by the Tribunal on specified issues or remitted the case for a new hearing before a differently constituted tribunal. In short this appears to be an instance of the Court of Appeal restoring the employer’s decision by substituting its opinion of the case for the Tribunal’s opinion but with findings that are too broad-brush. The Court has failed to adequately explain why the Tribunal’s findings were wrong in law: either by reason that specific factual findings were erroneous / perverse; and/or, by reason that the Tribunal’s perception of the requirements of reasonableness to be applied to any given factual finding was erroneous. REDUNDANCY SELECTION McCormick v Short Brothers Plc [2010] NICA 14 In 2001-2002 some 2000 employees were made redundant. The redundancy system was known as the 720 system which selected employees for redundancy under five criteria: productivity, quality of workmanship, attitude, ability to work unsupervised, housekeeping. Mr McCormick received a low score on ‘attitude’ and ‘ability to work unsupervised’. He received these scores because of his insistence on using drawings to check if parts were matched to the correct paperwork. This had been standard practice but his manager had encouraged him to dispense with this practice. It was a matter of a different approach to the job of checking that parts were correctly matched. A broadbrush approach was taken to the marking of the other criteria which made the scoring on ‘attitude’ and ‘ability to work unsupervised’ more significant. The Tribunal found that the marking down of the Claimant on ‘attitude’ and ‘ability to work unsupervised’ was perverse and irrational – no reasonable employer would have dismissed the Claimant for such a reason. The Company appealed the decision. The Court of Appeal overturned the decision of the Tribunal. Sir John Shiel stated as follows: [8] Mr Lockhart QC, who appeared on behalf of the respondent in this appeal, submitted that the decision of the industrial tribunal was wrong in finding that the marking down of the claimant on the criteria of "attitude" and "ability to work unsupervised" was perverse and irrational and was outside the range of reasonable responses of a reasonable employer. He submitted that while the Tribunal had correctly reminded itself of the applicable legal principles before reaching its conclusions in the present case, the Tribunal had failed properly to apply those principles and essentially substituted its own view for that of the employer. He submitted that the tribunal appeared to be saying that in the absence of a formal working directive that the quality inspection should be carried out as suggested by Mr Bailey, the claimant's failure to follow Mr Bailey's suggestion should not have been taken into account in assessing the attitude of the claimant. Mr Lockhart submitted that it is asking far too much of an employer to require him in every instance to have a formal work practice, which has to be followed, for a particular piece of work, as distinct from a manager making suggestions as to how the work should be done. He submitted that it was entirely proper for Mr Bailey in his assessment of the claimant to have taken into account the fact that the claimant insisted on doing the job the way the claimant preferred and that it cannot be said that Mr Bailey was perverse or irrational to have done so.