In a recent edition of the Bottom Line Express (Back issues of which are available to view on this blog) we looked at the issue of Trade Union Representation and a recent case decision stemming from the EAT. It is important for employers to keep abreast of the movements within the employment tribunals and the determinations that they are publishing as it will allow employers to exercise due caution when dealing with their own internal employee matters. In addition, these decisions allow an employer to identify potential pitfalls in addition to potential opportunities when seeking to address a work-related matter with an employee.
From the outset I would note that this is just one decision and does not form a binding legal precedent. While the EAT may have adopted a particular approach in this case it is by no means certain that they will do so in future cases. However, this decision can be of persuasive influence and it is important that employers seek advice from Peninsula Business Services on this matter before taking any action. The claimant employee in this case had ten years’ service and was a checkout operator at the respondent company’s customer service desk. Suspicions arose in respect of this employee in February 2009 when the Security Manager had noticed on CCTV that the employee did not charge her husband for a cauliflower and for a plastic bag on a transaction in which she had also used her own privilege card. Till receipts confirmed that this was the case. As a result the Store Manager decided to monitor the employee on CCTV on an on-going basis to identify any potential irregularities. Ten days after the incident with her husband, the claimant was observed on CCTV serving her sister, who also works for the respondent and on examining till receipts it was noted that the claimant had not charged for an apple pie. The claimant was also observed leaving the building without clocking out and returning with cigarettes and a mobile phone in her hand, both of which are prohibited under the respondent’s policy. The Company had detailed policies in place and two of which stated that (a) serving friends/family and (b) improper usage of staff privilege cards could result in disciplinary action up to and including dismissal. The Respondent also noted that the employee had received and signed for her handbook of policies in 2000 and 2004 and that she had received on-going training in Grocery Sales Procedures. The employee on the other hand argued that she hadn’t received any such training since November 2007. Investigation The employee was called to an investigation meeting on the 14th March 2009. When the employee noted that the Security Manager was present she immediately enquired as to whether or not she should have a representative with her but the Managers replied that it was only an informal investigation and that this wasn’t necessary. In the meeting the employee stated that she could not recollect the transactions with her husband and sister despite the till receipts being available to review and she stated that she did not want to review the CCTV footage. She gave no explanation for not charging for items and for the improper use of her privilege card and she accepted that she had her mobile phone and cigarettes on her during work. As a result the employee was suspended on full pay and informed that she would be subject to a disciplinary hearing. The Code of Practice Disciplinary Procedures - Trade Union Representation At this point it is worth noting that in Ireland all disciplinary meetings and procedures must be in compliance with the guidance set out in S.I. 146/2000 the Code of Practice on Grievance and Disciplinary Procedures. That Code of Practice states that an employee is entitled to representation at a disciplinary hearing and that “for the purposes of this Code of Practice, ‘employee representative’ includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.” Disciplinary Hearing - Respondent’s Policy on Trade Union Representation At the disciplinary hearing the employee attended with her trade union rep and was informed by the manager conducting the disciplinary that the company’s written disciplinary policy was to allow a fellow employee attend only and that they did not permit trade union representation. The employee did not wish to attend without her trade union rep and so the meeting did not go ahead. Subsequently the employer wrote to the employee in an attempt to reschedule the disciplinary hearing. The correspondence involved specified that all evidence including CCTV footage would be available for review at a disciplinary hearing which had been scheduled for the 12th May but that again the employee could only attend with a fellow employee. As a result of this the disciplinary hearing never went ahead as the employee refused to attend unless accompanied by her trade union representative. The employer wrote to the employee after to state that hearing would take place and that they would happily accept any submissions from the employee in writing given that she would not attend. The employee responded to the effect that she was available to attend an oral hearing and that the on-going refusal to allow her trade union rep to attend was in breach of her rights under S.I. 146/2000 the Code of Practice on Grievance and Disciplinary Procedures. The decision to dismiss the employee was reached at the disciplinary hearing which was held in her absence on the basis that the employer had lost all trust in its employee. This decision was subsequently upheld at an appeal hearing. EAT Decision The employee brought a claim to the EAT for unfair dismissal on the grounds that (a) her conduct did not amount to gross misconduct and (b) that her dismissal took place in breach of the fair procedures set out in S.I. 146/2000. In respect of (a) the tribunal held that the employer had lost trust in the employee as a result of the employee’s actions. In addition, the EAT noted that the employer’s policies provided that any breach of register procedures can lead to disciplinary action up to and including dismissal and that the claimant had signed up to this policy. Accordingly, it was held that the employee’s conduct did amount to gross misconduct. The EAT then considered (b) and whether or not the employer had breached fair procedures by their refusal to allow a trade union representative to attend the disciplinary hearing. The EAT held that the employer had not breached S.I. 146/2000 as “in affording the claimant the opportunity to bring a colleague of her choice with her to the scheduled disciplinary meetings the respondent was in compliance with its own policy and indeed with clause 4 of S.I 146/2000, which defines ‘employee representative’ as including, inter alia, a colleague of the employee’s choice.” The impact of this decision cannot be underestimated. The EAT in this case explicitly stated that as long a Company’s internal disciplinary procedures are in accordance with S.I. 146/2000 generally and such procedures at least afford the right of an employee to be accompanied by a fellow employee then an employer may justifiably refuse to allow a trade union representative access to a disciplinary hearing. This is because by allowing a fellow employee to attend as a rep the employer has complied with the definition of an “employee representative” for the purposes of the code of Practice. In conclusion the EAT held that the employee had not been unfairly dismissed and found in favour of the employer. Critical Analysis As stated in the introduction to this article it is important that employers do not now swear by this decision. EAT decisions have often been criticised by observers as being inconsistent from one case to the next and this case in itself is evidence of this. For example, in Heffernan -v- Dunnes Stores (UD1355/2009), a case involving the same employer, the EAT considered the fairness of a dismissal where an employee had been abusing the company’s loyalty card scheme (a different scheme to the privilege card scheme in this O’Halloran case). In the Heffernan case the employer became aware that this loyalty card scheme was being abused and they went about investigating it. On this point it is interesting to note the decision of the EAT where they stated as follows: “The respondent pointed to their own handbook as being the source of the rules and practices appropriate to the workplace. The reference to the misuse of the value club card is unavoidable therein but the proposition that all employees know the content of the handbook inside out and refer to it daily is not sustainable. The onus is on the respondent to update and remind employees of what is expected of them in the workplace at staff meetings, circulars and through notifications on staff notice boards. It seems to the Tribunal that the respondent was alerted by head office of an irregular use of the card. In response the respondent conducted a covert operation involving CCTV footage studies and an analysis of till receipts. It was open to the company at this point to generally alert staff that the inappropriate use of value club cards would not be condoned and remind staff of the handbook statements in this regard. The respondent did not choose to do this and instead narrowed down its investigation to an employee of ten years standing with an untainted work record”. When you compare the decision of the EAT in the Heffernan case, where the employee won €24,000 for unfair dismissal, with the decision in the present O’Halloran case you can note a number of inconsistencies in similar circumstances. Firstly both employees had ten years’ service with clean disciplinary records. Secondly, it is unclear how much the employer kept O’Halloran in touch with their Grocery Sales Procedures and this was in fact disputed by the employee. Thirdly, in both cases the employer became aware of potential misconduct which was followed up by a period of covert surveillance to monitor behaviour. In the Heffernan case the EAT clearly attached a significant degree of their finding of unfair dismissal on this covert behaviour alone as it was deemed to be wholly unfair. In the O’Halloran case however, this type of covert behaviour wasn’t discussed at all in the context of the EATs decision and it seems to have been ignored or glossed over. Conclusion This approach of the EAT to the tricky question of trade union representation and fair procedures is something which will have to be monitored closely in future in order to determine whether or not a clear pattern will emerge. As highlighted above, two EAT cases involving the same employer reached widely differing conclusions. In addition, in the case of Devlin -v- Player & Wills Ltd. (UD 90/1978) the EAT held that a refusal to allow a trade union representative amounted to “unfair industrial practice” and they found that this resulted in the employee’s dismissal being unfair. Thus, employers will need to thread carefully.
