THE INDUSTRIAL TRIBUNALS 

CASE REF:    478/12  

CLAIMANT:	Sam Moffett

RESPONDENT:	Oakwood Distribution Ltd

DECISION 

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed but was fairly dismissed for some other substantial reason.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mr P McKenna
	Mr J Kinnear

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Neil Phillips, Barrister-at-Law, instructed by Jones Cassidy Jones Solicitors.

SOURCES OF THE EVIDENCE

1.	The claimant gave evidence on his own behalf.

2.	The following persons gave evidence on behalf of the respondent:-

Wendy Chambers
Paul Cannon
Phillip Sittlington
John Quail
Claire Walker

3.	Additionally, there was an agreed bundle before the tribunal.  The claimant also provided a bundle which was not agreed and this was not consulted by the panel during the hearing.

THE CLAIM AND THE DEFENCE

4.	The claimant claimed that he had been unfairly dismissed.  The respondent denied this and contended that he had been fairly dismissed for some other substantial reason.

THE RELEVANT LAW

5.	The panel considered the following in reaching its decision:-

		Article 130(1)(b) which states as follows:-

		“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  -…

		(b)	that it is either a reason following 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.”

	The panel also considered the case of Henderson  v  Connect (South Tyneside) Ltd [2010] IRLR 446 EAT.

THE FACTS

6.	The claimant worked for the respondent from 14 August 2007 until 21 February 2012.  His job entailed him distributing and displaying goods in the 
non-food category such as DVDs and books in the premises of Tesco Plc in Main Street, Crumlin, Co Antrim.  The claimant’s job title was “merchandiser”, and he worked 28 hours per week.

7.	The manager of the Tescos Store at Crumlin was Tom Sarsfield.  On 5 January 2012, he raised concerns about the claimant’s state of readiness concerning various promotions in the store and this was raised directly with the claimant by his manager, Wendy Chambers, on 5 January 2012.  The claimant, as a result of his performance and commitment to the store being queried, was angry and upset and took a holiday with effect from 9 January 2012.  When he returned, as he was the only representative from the respondent working in Tesco Crumlin, his merchandising work and associated tasks had not been done in his absence.

8.	The claimant informed Sarah Crory, who was the non-food manager of that Tescos Store, that Mr Sarsfield had firstly commented on him prior to his period of annual leave.  While the claimant was absent from the store Mr Sarsfield informed the respondent that it would be better if the claimant did not return to work in the store.

9.	Ms Chambers commenced an investigation into this matter.  After the claimant’s return to work on 16 January 2012, the claimant was put on paid suspension and this was confirmed by a letter dated 20 January 2012.  The claimant was warned that amongst other outcomes, he could be required to attend a disciplinary hearing.

10.	Ms Chambers did discuss the claimant with Mr Sarsfield but he was unwilling to let the claimant return to work in his store.

11.	A disciplinary hearing was convened by a letter dated 3 February 2012.  This eventually took place on 21 February 2012 before Mr Paul Cannon, the Format Merchandising and Support Manager.  The claimant had been banned for “bad mouthing” a store manager and undermining his ability to run the store.  As Tesco was the respondent’s only customer, the claimant had been banned from Tesco as a whole and could not continue on paid suspension indefinitely.  Mr Cannon made strenuous efforts to resolve the situation but neither party was interested in trying to smooth over the difficulty in their working relationship.  An argument raised by the claimant was that Mr Sarsfield had not said that the claimant was “banned”, but the tribunal considers that the words that he did use had in essence the same meaning.  The claimant did not acknowledge any fault on his part and required a retraction of Mr Sarsfield’s criticism.  He was not prepared to consider apologising to Mr Sarsfield for his comments that undermined him.  At the hearing before the tribunal he said that he would have been prepared to consider an apology if this had been put to him explicitly by Mr Cannon.  The tribunal does not consider that in the particular circumstances in this case it should have been necessary for Mr Cannon to use the word “apologise” outright to the claimant.  The tribunal considers that he made it clear that some action from the claimant was needed for him to approach Mr Sarsfield.  We do not consider that anything other than an apology could be required.

12.	Mr Cannon terminated the claimant’s employment on the ground of his ban from Tesco and the decision was confirmed in writing.  The claimant was offered the right of appeal and he attended an appeal hearing on 8 March 2012 in front of Mr John Quail, Format Merchandising and Support Manager.  He upheld the termination of the claimant’s employment on the grounds that the original decision was reasonable due to Mr Sarsfield banning the claimant from Tesco Crumlin.

13.	There was considerable argument about the nature and extent of the ban.  The claimant not only did not believe it extended to all Tesco stores but he did not believe that he had been banned at all.  He considered that this was a conspiracy that was concocted between his management and Mr Sarsfield.  The tribunal saw no evidence that this was the case.

14.	The principle that if a person is banned from one Tesco store, he is automatically banned from the whole chain, is not a policy that has been reduced to writing.  At any rate, no written policy to this effect was produced to the panel.  However, it did have the benefit of evidence from Ms Claire Walker, the Human Resources Manager, who confirmed that this had been the automatic custom and practice in Tesco from her arrival in the respondent in and around 2007.  In the respondent’s disciplinary policy it indicated that it would try to re-site a claimant who was not able to continue working in his original store.  However, this had been overtaken by events in that the respondent had been bought over and was part of Tesco Group.  This effectively meant that Tesco was the respondent’s only client and re-siting a person was not possible.  Previously, if a person was banned from a Tesco store, it could have been possible to re-site them in an Asda store or a store of any other client.  This was no longer the case.  Had the ban and subsequent dismissal taken place in England, for example, it might have been possible to re-site the claimant at one of the respondent’s distribution depots.  However, this was not the case and the net effect of the claimant being banned from one Tesco store was that he automatically was banned from all Tesco stores and could not be re-sited.  This meant he was dismissed and his appeal was upheld.  This was not a case in which there was any statutory procedural unfairness.

CONCLUSIONS

15.	Article 130(1)(b) states that the respondent must show that the reason for dismissal is either a reason falling within paragraph (2) of that article or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.

16.	It was contended on behalf of the respondent that the respondent had shown that by being banned for speaking against/undermining the store manager of Tesco Crumlin, and consequently being banned from all Tesco stores in Northern Ireland, the claimant was not capable of being re-sited and was consequently fairly dismissed.  The respondent argued that this came within the definition of some other substantial reason of a kind such as to justify the claimant’s dismissal.

17.	In reaching its decision the tribunal had regard to the decision of the Employment Appeal Tribunal in the case of Henderson  v  Connect (South Tyneside) Ltd.  In that case an employee had been dismissed as a bus driver by the insistence of the local authority because of allegations of sexual abuse in respect of which the Police had declined to prosecute.  In that case, the tribunal at first instance held the dismissal to be fair because the employer had done its best to persuade the council to change its stance and had no other work for the employee.

18.	The panel did have reservations about the investigation carried out by Ms Chambers.  It seemed that it only took account of Mr Sarsfield’s point-of-view.  However, had this been a straightforward misconduct type of case this might have had some impact on the decision.  This is not that type of case.  It is “a dismissal at the behest of a third party”.  The tribunal was not comfortable with the apparent ability of one person to override the employment rights of another.  However, in the case of Henderson  v  Connect (South Tyneside) Ltd Mr Justice Underhill stated as follows:-

		“Cases of this kind are not very comfortable for an employment tribunal.  Nevertheless, it has long been recognised that the fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee has thus suffered an injustice, does not mean that the dismissal is unfair within the meaning of the statute.  That is because the focus of section 98 of the Employment Rights Act 1996 and its statutory predecessors is squarely on the question whether it was reasonable for the employer to dismiss…

		It must follow from the language of section 98(4) that if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client  -  most obviously by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee  -  but has failed, any eventual dismissal will be fair:  the outcome may remain unjust but that is not the result of any unreasonableness on the part of an employer.  That may seem a harsh conclusion: but it would of course be equally harsh for the employer to have to bear the consequences of the client’s behaviour; and parliament has not chosen to create any kind of mechanism for imposing vicarious liability or third-party responsibility for unfair dismissal.”

19.	In this case we find that Ms Chambers and, to a greater extent, Mr Cannon made every effort to persuade Mr Sarsfield to let the claimant return to work in his store.  It appears that there were some efforts to see if the claimant could be re-sited but these were not pursued actively by the respondent, it being the position of the respondent, as explained by Ms Claire Walker, that the other store managers should not have to be asked to take on the claimant.  The tribunal was still concerned at the ability of a third-party to effectively take away the rights of an employee and Ms Walker explained that such a circumstance was largely rare within her experience.  She said that in other cases, most managers of the Tesco stores would accept the intervention of a senior manager such as Mr Cannon and allow the contumacious employee to return to work.  Mr Cannon made many efforts to persuade Mr Sarsfield to allow the claimant to return to work but he was adamant that the claimant would not return to work in his store.  Effectively, the claimant could not be re-sited and was dismissed.  In line with the authority of the Henderson case, we have to find that the claimant has been fairly dismissed for some other substantial reason  -  his ban from the Tesco Crumlin store and consequently all Tesco stores in Northern Ireland.

Chairman:

Date and place of hearing:       29-31 October 2012, Belfast.

Date decision recorded in register and issued to parties: