Alleged undue influence in appeal hearing leading to finding of unfair dismissal and re-engagement

Amongst the Employment Appeals Tribunal cases available this week include the case of Karen Egan v Ulster Bank Group (Ireland) Limited UD 1772/2010. This case is interesting as the Tribunal ultimately took the view that one of the persons involved in the appeal, who gave a dissenting opinion and who was not available to give evidence, may have been placed under undue pressure.The Claimant in this case worked as a bank official in the Respondent’s Castlebar branch having been employed by the Respondent since February 2000. On 16th March 2010 the Claimant left her car in to be serviced.Part of the Claimant’s duties included after the branch closed was to balance the cash in the branch and after this action was completed it was not possible to operate the electronic banking system.Later that day the Claimant realised that she had no means to pay the garage in relation to her car being serviced and after 5.40pm the Claimant removed €350 from the till and left a debit note in the till to that effect. It was noted by the Tribunal that the bank manager was still on the premises at this point. The next day the Claimant was not due at work and before the branch opened the Claimant called a colleague and asked her to put back €350 in the till from the Claimant’s account. The Claimant’s colleague did not do this but brought it to the attention of the team leader and ultimately the bank manager.The Claimant met with her manager and union representative on 24th March 2010 and accepted that her actions were against the Respondent’s policy and procedures. She was suspended with pay pending further investigation into the alleged “removal of €350 without authority from cashflow you were operating on that day”. On 25th March 2010 the Respondent wrote to the Claimant inviting her to a disciplinary hearing and the allegations were set out in a letter which alleged that the actions “represented a failure to exercise adequate control over cash”. The Claimant was made aware that the allegations could be considered to be gross misconduct as defined in the Respondent’s disciplinary policy. The Claimant was supplied with a copy of the notes of the fact-finding meeting and the Respondent’s code of conduct and disciplinary policy.At the disciplinary hearing on 12th April 2010, the disciplinary manager took the view that the actions of the Claimant led to a breakdown in trust between the Respondent and the Claimant due to a breach of fundamental bank rules amounting to gross misconduct. After an adjournment the Claimant was informed of the decision to dismiss her by letter dated 20th April 2011. The letter included the right to appeal and the appeal hearing was held on 14th May 2010. The hearing complied with the specific criteria for committee members on disciplinary committees. Both members on the appeal committee initially disagreed on the outcome of the appeal but ultimately both parties agreed that the appeal should be rejected and the Claimant was informed on 7th July 2010. The Claimant later exercised her right of external appeal which was heard on 17th January 2011 and HR reminded the person conducting the appeal that the test to be applied was whether the decision to dismiss fell within the band of reasonable responses of a reasonable employer. On 3rd January 2011 the Claimant was advised of the rejection of her right of appeal.Determination

1. The Claimant’s actions in regard to the leaving of a debit note in the till covered by the Respondent’s code of conduct meets the definition of gross misconduct.
2. The Code of Conduct provides that the sanction may include dismissal and this was the sanction invoked as a result of the Disciplinary hearing.
3. The Tribunal noted that one of the Committee appeal members felt that the sanction was extreme.
4. The notification of the rejection of the appeal was not heard until seven weeks after the appeal.
5. In the absence of evidence from the appeal committee member, the Tribunal was not satisfied they were not subjected to undue influence as a result of which the member changed their view of the appeal.
6. The Tribunal was not satisfied that the conduct of the appeal was fair in the circumstances and hence the dismissal was unfair.

A majority of the Tribunal deemed that re-engagement into an equivant role within six weeks was appropriate with Mr. Morrison dissenting stating that he felt that compensation was most appropriate. It is not clear from the decision whether the Claimant indicated which remedy she sought (i.e. compensation, re-engagement or re-instatement) and the Tribunal decided on the appropriate remedy.The Tribunal also noted that the period from dismissal until re-engagement be considered a period of unpaid suspension which preserved the Claimant’s continuity of service.