[Walsh v Belfast Metropolitan College NIIT 14129/18IT, 16100/18IT]

Dylan Loughlin

Heads of Claim: Unfair Dismissal.

Relevant Law/ Statute:

Art. 130 Employment Rights (Northern Ireland) Order 1996.

Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

The Claimant lodged a claim against the Respondent in respect of being Unfairly dismissed from her job as a lecturer in Belfast Metropolitan Collage (BMC) in September 2019. Following an investigation and disciplinary the Claimant was dismissed for gross misconduct and her subsequent internal appeal was dismissed also. She then appealed to the IAC, an independent appeal committee within the Labour Relations Agency (LRA). They made recommendations to overturn the decision, but BMC did not implement the recommendations.

The Claimant claimed automatic unfair dismissal as a result of the Respondent’s failure to comply with the statutory dismissal procedure, she also additionally claimed for procedural and substantive unfairness. The automatic unfair dismissal was upheld following the statutory test set out in the 1996 Employment Rights Order. The first hurdle was unanimously decided in that the reasoning, being conduct, is suffice in the conclusion of dismissal. This was not in dispute, however the second step provided more problematic. She had been invited to a hearing by a special committee of the governing body which ultimately didn’t make the decision but merely made recommendations to the governing body for consideration. The finalised decision of the governing body, made on the 09/01/18, could not been seen to comply with the secondary hurdle due to the fact that the decision was made in a separate interview to a separate panel over a month later. To quote: ‘Such a procedure would allow a special committee to recommend a warning and then to have the full Board, or a different part of the Board, order dismissal – or the reverse.’ This is where the panel unanimously decided that the procedure had been automatically unfair.

The third step also proved problematic; this step deals directly with the appeal. The right of appeal must be notified to the employee in accordance with the LRA specific code. This states that the appeal must be dealt with by someone more senior than the person(s) that dealt with the original decision. Due to the scale of the employer, art. 90(16) of the industrial Relations (NI) order 1992 applied. The argument that the appeal to the IAC was rejected fully taking the stance that this was an additional step available to the Claimant. The absence of the appeal and subsequent unfulfillment of steps 2 and 3 allowed the tribunal to conclude that it ‘offends against the basic principles of natural justice’ and thus leading to the finalised judgment that the dismissal was automatically unfair for the purposes of the statutory test set out in the 1996er.

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