A recent decision from the Court of Appeal in Northern Ireland has considered the issue of a dismissal that was automatically unfair however compensation was reduced to nil because the employee had contributed 100% to his dismissal because of his alleged difficult personality and the impact this was having on working relationships within the workplace.

Mr Malcolm Colhoun was employed by Schrader Electronics Limited as a Graduate Research and Development Engineer in June 2009.  On 11 May 2010 he showed a completed application form under the flexible working policy to his Line Manager, Mr Sam Porter.  The Tribunal stated that this was not intended to be a formal flexible working application at this stage.  The employee at this stage was seeking advice on how to proceed.  Mr Porter told the Claimant that he was unfamiliar with the process and that he would have to ask for advice on the form.  Mr Porter then advised him that there was a requirement of reference to a child in an application form for flexible working and that the childcare element in the application form should be explained.  The application for flexible working was for an alteration to the employee’s working hours to allow annualised working incorporating on average at least one day’s home working per week.  Mr Porter stated that having checked the position the application for home working was unlikely to be successful.  The employee decided nevertheless to proceed with his application.  This was handed to Mr Ivan Bailie, the Research and Development Manager, in or around mid-May 2010.  Mr Bailie did nothing in relation to the application.  He stated that the application was overlooked in his in-tray.  Nonetheless a reminder was sent by the employee on 17 June 2010.  This coincided with the Claimant’s Annual Performance Review (APR).  The APR was a means by which the Respondent judged the progress that employees had made in the previous year and was a tool for giving encouragement in respect of good work done and advice as to how to improve performance.  The employee’s APR was largely favourable and met in every respect the basis standards of a first year Graduate Trainee.  He was recommended by Mr Porter for the maximum pay rise.

On the evening on 19 June 2010 the employee sent an e-mail to Ms McNeill, Head of Human Resources, complaining that his flexible working application had not been dealt with within the statutory timetable and noting the possible need for third party intervention.  It was accepted this was a threat of proceedings.  He sent a further e-mail to Steve Thomson raising a grievance against Mr Porter.  He alleged that Mr Porter had lied in the APR when he stated that a deadline had been missed in relation to a project and that in fact he had delivered the project on time with absolutely no support or direction.  He accused Mr Porter of “blatantly lying and grossly misrepresenting his performance”.  The e-mail suggested that Mr Porter had acted maliciously and it accused him of dishonesty constituting gross misconduct under the disciplinary policy.

The Tribunal concluded that the content and wording of the grievance was extraordinary.  It also held that the content of the APR was almost completely favourable to the employee and given that he had been recommended for a full pay increase the Tribunal concluded that the attitude of the Claimant in this case demonstrated in his grievance and maintained thereafter was appalling and a “fatal blow to any ordinary working relationship” between the Claimant and his line management.

A grievance hearing took place on 20 June 2010 and was heard by Mr Thomson and Mr Robinson, at which the Claimant maintained his criticisms of Mr Porter and suggested that these were supported by four named workmates however when they were spoken to they denied that Mr Porter had been in any way unfair in his treatment of the Claimant and said that he got on well with the entire team.  The Claimant was given the outcome of the grievance on 5 July 2010 and he appealed on 14 July 2010.

On 9 July 2010 the employee had a meeting with the HR department about his flexible working application and it was discussed with Mr Porter and Mr Bailie and it was considered that his absence from the workplace would cause a detrimental impact on performance in that a Design Engineer needs to be present in the laboratory to develop, organise and validate relevant tests, to provide support to other departments, to attend meetings and to receive training as a Trainee Engineer.  There was also perceived detrimental impact on ability to meet customer demand in that an on-site presence was required and a detrimental impact on quality in that home working would not allow for the assistance and the level of support that would be required as a Trainee.  This was communicated to him in a letter dated 28 July 2010.  It was accepted by the employer and the Tribunal that the application for flexible working was outside the statutory time limits and therefore the Tribunal awarded £2,280 to the employee by reason of the Respondent’s failure to properly process his applicable for flexible working.

On 20 July 2010 the Claimant noted a flash as a result of a faulty socket and he sent an e-mail to the Health and Safety Officer rather than reporting it to his relevant Line Manager stating that basic inspection of functionality testing had not been carried out.  The tone of the e-mail was highly critical.

On 27 July 2010 the employee met with Mr Porter and Ms McNeill to seek to resolve the grievance informally.  No progress was made and the matter proceeded to hearing on 29 July 2010.  The employee maintained his stance that his Manager, Mr Porter, had behaved maliciously and dishonestly in his appraisal however his appeal on the grievance was dismissed on 5 August 2010 and the appeal for flexible working was also dismissed on 17 August 2010.

By letter dated 30 August 2010 the employee was invited to attend a disciplinary hearing to deal with the issue of the Claimant’s difficulty working personality, the impact this was having on working relationships and whether his future employment with the company was tenable in light of those factors.  The Tribunal in looking at the disciplinary interview concluded that the Claimant did not at any stage dispute that the issue of his personality, and the way in which he had interacted with others in the workplace, had been the subject of frequent discussion between him and his Line Managers in the course of his employment.  The issues read out by the Respondent at the disciplinary meeting were:

• Abrasive approach when dealing with people
• Confrontational approach
• Difficult personality to work with
• Difficulty establishing working relationships
• Inability to see that he may be wrong
• Unreasonably status conscious
• Inability to adhere to established business processes
• Lack of understanding of need to stick to timelines
• Lack of understanding of customer needs – blames others for own non-performance
• Standard response to direction is “I don’t agree”
• Arrogant
• Negative outlook with everything seen as a problem to him
• Routinely disagrees with management decisions
• Fails to take direction
• Needlessly critical of colleagues skills and abilities

The Tribunal concluded that the relationship between the Respondent and the Claimant deteriorated significantly from the 19 June 2010 when the Claimant lodged his grievance and the Tribunal said that the tone and attitude of the Claimant was appalling and was fatal to the maintenance of an ordinary working relationship.  The Claimant was dismissed on 10 September 2010 and it was noted by the Tribunal that during the appeal process the Claimant had not put forward any proposition that he wanted to modify or reform his approach or that he recognised that his behaviour had caused difficulty.  His appeal letter stated “I wish to appeal this decision on the grounds that it was based entirely on unsubstantiated accusations, speculations and rumour”.

He did not accept that the grievance was inappropriate or extravagantly worded, he did not offer to withdraw his allegation against his Line Manager and his appeal was dismissed.  The appeal to the Court of Appeal was that the case as pleaded by the Respondent was that he was dismissed for some other substantial reason under Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996 and that the Tribunal’s conclusions were perverse however the Court of Appeal did not accept same and stated that the issue for the Tribunal was the fact of whether the relationship had broken down.  The Tribunal found that the letter inviting the Claimant to the disciplinary hearing did not state that this was a misconduct hearing.  The Tribunal was satisfied however that the employee was sufficiently on notice of the contention that there was an issue about the way in which he interacted with others in the workplace.  Although there was a lack of written records before the Tribunal to the degree that the Tribunal stated that “the approach of the Respondent was amateurish and slipshod”, the Tribunal recognised the extremely damaging terms of the grievance.  The Tribunal described the Respondent’s approach to training and supervising as shambolic but concluded that the employee had no real understanding of the difficulties he caused in the workplace and that he had no real intention of reforming those.  The Court of Appeal recognised that there is a difficulty in determining the appropriate label for a particular set of facts in reasons set out in Article 130 of the 1996 Order and the Court agreed that personality of itself cannot be a ground for dismissal but the manifestation of personality can result in conduct which can fairly give rise to a dismissal.  That was the case made by the Respondent.  The Court of Appeal upheld the decision of the Tribunal and found no grounds upon which it could be asserted that the decision was perverse.  The Court of Appeal stated that “The Tribunal was the expert industrial jury who were well placed to determine how the actions of this appellant affected his ability to continue to work in this workplace”.