Council successfully defends unfair dismissal and discrimination claim

07 January 2013

Maxine Orr of Worthingtons Solicitors Belfast discusses the case of Shernelle Knox v Castlereagh Borough Council

In the case of Shernelle Knox v Castlereagh Borough Council, the Claimant was employed by Castlereagh Borough Council in excess of 22 years and, at the time relevant to these proceedings, as PA to the Chief Executive; an important role she held from 1998.

In February 2009, the then Chief Executive resigned and until such time a suitable replacement could be appointed, the Chief Executive post was rotated amongst the members of the Council’s management team, of which there were four.

From 2007, when the Claimant gave birth to her daughter, she suffered physical and mental health problems, specifically depression. The Claimant’s level of sickness absence resulted in 2 meetings in July and September 2010 respectively, at which targets in respect of her absence were adjusted, the manager addressing same having taken cognisance of the Claimant’s medical condition. An adjustment to the absence management procedure was again made in April/May 2011, when no verbal warning was issued to the Claimant in relation to her continued absences.

In early 2010, the Claimant forwarded to a member of the management team and acting Chief Executive, Mrs Joan McCoy, emails which the Claimant accepted during the course of Tribunal proceedings were ‘inappropriate…merited disciplinary action against her’ and the Claimant confirmed she was aware that she was ‘liable to the penalised as a result’ of sending the emails.

Castlereagh Borough Council instigated disciplinary action against the Claimant in this regard, the allegations against her being:

(1)Offensive behavior through the medium of emails towards a fellow employee;

(2)Personal insulting remarks towards a fellow employee;

(3)Undermining the Director of Administration and Community Services/ACE (Mrs Joan McCoy); and

(4)Contravention of the IT Policy.

The allegations were investigated and the investigation officer was of the view that same warranted proceeding to disciplinary stage. The disciplinary officer issued the Claimant with a final written warning for major misconduct, having taken into account the Claimant’s illness. the Claimant appealed this decision. However, the appeal officer was of the opinion that the allegations against the Claimant amounted to gross misconduct warranting dismissal but, having cognisance of the mitigating circumstances proffered by the Claimant, of which there were 11, the disciplinary penalty was reduced to a final written warning; thus both the disciplinary and appeal officer arriving at the same conclusion but via different means.

In late 2011, the following allegations were made against the Claimant:

(1)That she was verbally abusive about the management team on 16 June 2011;

and (2)That she failed to abide by the absence management procedure as she had failed to ring her employer or have someone ring on her behalf, to confirm sickness absence.

The Claimant had taken to texting, but had been advised on a number of occasions that this was not appropriate. The investigation officer determined that these allegations were to proceed to disciplinary stage. The disciplinary officer appointed did consider the Claimant’s illness when arriving at his decision, recommending a written warning in respect of each allegation. However, taking into account the ‘live’ final written warning on the Claimant’s personnel file as a result of the incidents in 2010, referred to above, the disciplinary officer, in exercising his discretion, decided that dismissal was appropriate in the circumstances. This decision was upheld by the appeal officer.

The Claimant instigated Industrial Tribunal proceedings against Castlereagh Borough Council, alleging unfair dismissal, claiming, in summation, that: a.the penalty of dismissal was to harsh in the circumstances; and b.that Castlereagh Borough Council did not take full consideration of the Claimant’s mitigating circumstances.

The Tribunal found against the Claimant in respect of both allegations. The Tribunal was of the view that the appeal officer of the second disciplinary process in particular ‘…emphasised the gravity of the behaviour in his opinion and that this, coupled with the existence of the final written warning, meant that dismissal was inevitable. This approach is within the band of reasonable responses for a reasonable employer in the circumstances.’

In addition, throughout the duration of the hearing, the Claimant did not challenge the categorisation of the allegations against her.  The Claimant also alleged disability discrimination under two separate headings: a.an alleged failure on the part of the Respondent to make reasonable adjustments in relation to the penalty of a) dismissal; and b) harassment. Again, the Tribunal found in favour of the Respondent in this regard. Of particular note, when referencing the submissions of Counsel instructed on behalf of the Claimant, the Tribunal commented that had the Claimant not been dismissed ‘the logical conclusion would be that the Claimant could continue to engage in written and oral outbursts with impunity, or at least without the possibility of ever being sacked, no matter how many times or how serious the infringements. This cannot be the case nor do we find it to be the legal position.’

In relation to the Claimant’s claim of harassment, the Tribunal were of the view that there was no evidence of such conduct before it. The Claimant’s claims were therefore dismissed.

Maxine Orr is a Partner with Worthingtons Solicitors and is head of the Employment law department.   Should you have any queries in relation to this article, please submit your enquiry in the form below and a member of our Employment team will be happy to contact you.

  

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