Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 546/04

CLAIMANT: Patrick Leonard

RESPONDENT: Department for Social Development

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Ms Elliott

Members: Mr Lyttle

Ms Macauley

Appearances:

The claimant was in attendance and represented himself.

The respondent was represented by Mr Timothy Boyce, Barrister at Law instructed by the Departmental Solicitor's Office.

Reasons

1. Sources of Evidence

The tribunal heard evidence on behalf of the claimant from the claimant himself. The tribunal heard evidence on behalf of the respondent from Mrs Joanna Quinn, Deputy Personnel Officer and Mrs Margaret Stitt, the Acting Personnel Officer. The tribunal was provided with a bundle of agreed documents by the respondent and the claim form and response.

2. The claim and the defence

The claimant claimed that he had been unfairly dismissed. The respondent claimed that the claimant had been fairly dismissed for misconduct, after a proper investigation. The claimant was invited to provide written comments and was afforded a meeting to supplement the written response. The claimant exercised his right of appeal to the NI Civil Service Appeal Board.

3. The Issue

The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent. The respondent dismissed the claimant on disciplinary grounds for working whilst absent from work due to sickness which amounted to gross misconduct. The issue for the tribunal was whether the respondent had acted reasonably in treating the claimant's conduct as a sufficient reason for dismissal and whether dismissal for that reason was fair.

4. Findings of Fact
5. .1 The claimant was employed by the respondent in a permanent capacity since 20 March 1990 as a Support Grade Band II (SGBII). The claimant transferred from the Belfast Benefit Centre of the Social Security Agency (SSA) to the Administration and Support Unit on 26 September 2001. The claimant was absent from work for the period 7 October 2002 until 18 April 2003 due to stress. During this period the claimant submitted medical evidence to the respondent which stated that he should refrain from attending work. The claimant was in receipt of Statutory Sick Pay and Occupational Sick Pay until 3 February 2003 on which date the respondent expected him to return to work. On 9 January 2003 the claimant attended the Occupational Health Service and indicated that he expected to have a meeting with his Trade Union Representative during the week commencing 13 January 2003 to try to resolve issues regarding working relationships and it was expected that the claimant would return to work thereafter. The doctor advised Personnel Branch that a return could be expected on 20 January 2003 and that there was no medical reason to expect more than normal absence from work thereafter. The claimant later advised that he had not received the relevant correspondence forwarded in respect of his return.
6. .2 On 1 November 2002 the claimant's senior manager Mr Dessie Dennison notified Personnel Branch that he had again received anonymous information that the claimant was driving a taxi for Blue Star Taxis, Donegall Road, Belfast whilst claiming to be sick. A white Ford car was identified. As a result of the information contained in the e-mail the matter was referred to the Social Security Agency's Internal Security Unit (ISU). On 28 March 2003 ISU forwarded a copy of a record of observations carried out by Fraud Investigation Officers. The report contained statements in respect of observations carried out on the claimant who was observed working as a taxi driver on 30 November 2002 and on 10, 11 and 12 December 2002. This report was received by Personnel Branch on 31 March 2003.
7. .3 Personnel Branch wrote to the claimant on 9 April 2003 (9 days after receipt of said report) advising him that he had been observed operating as a taxi driver from the Blue Star Taxi depot on the four dates of the positive observations by the Fraud Investigation Officers. The claimant was referred to the Staff Conduct and Discipline booklet and invited to provide written comments. The claimant's Trade Union Representative responded on the claimant's behalf and advised that he visited the taxi depot for social reasons on the advice of his GP but was not working as a taxi driver on the specified dates. A copy of the claimant's PSV certificate was provided which had expired on 13 November 2002 and documentation relating to PSV test appointments. A letter was enclosed from the depot owner Mr R Breen who stated that the claimant did not work and could not have done so as he had no PSV certificate. The respondent sought comments from the Internal Security Unit in respect of the fact that it would be illegal for the claimant to drive a taxi when his PSV certificate had expired. The respondent was advised that a considerable number of taxi drivers in the Greater Belfast area operated without a valid PSV certificate.
8. .4 On 19 May 2003, formal disciplinary charges were issued to the claimant which set out the Fraud Investigation Officers' observation records and advised that the conduct was sufficiently serious to warrant dismissal. The claimant's Trade Union representative requested full disclosure of all the information obtained by the respondent. This request was not initially granted by the respondent as all the information was contained in the letter. After the respondent obtained legal advice the complete observation records were anonymised and forwarded to the claimant on 1 September 2003. The claimant's representative forwarded detailed comments in respect of the disciplinary charges on 18 September 2003 in accordance with paragraph 1082 of the NICS Pay and Conditions of Service. The response referred to a number of discrepancies and forwarded a photograph of damage to the rear bumper and an unsigned statement from Mr Kevin Hillick stating that the claimant's car was in his garage from 11 until 13 December 2003 undergoing repairs. An oral hearing was requested if necessary. Personnel Branch wrote to Benefit Investigation Services in respect of this information seeking their comments and inquiring in respect of obtaining further information from the taxi firm. A response was provided by BIS in respect of the challenges to the observations and a copy of the PSV certificate result of 7 December 2003 listing the reasons why the car had failed to pass. The leading Fraud Investigation Officer responded specifically to the challenge to his description of the claimant's hair colour as fair.
9. .5 A meeting was held on 27 October 2003 between the Deputy Personnel Officer Mrs Joanna Quinn, the claimant and his representative. This meeting presented an opportunity for the claimant and his representative to make oral submissions and for Mrs Quinn to make inquiries in respect of same. Thereafter Mrs Quinn considered the entire file and prepared a report recommending dismissal as the claimant's conduct amounted to gross misconduct which had destroyed the employment contract between employer and employee, making any further working relationship and trust impossible. Mrs Quinn could act as decision maker in any case short of dismissal, however in a case involving a recommendation of dismissal the decision could only be made by Mrs Stitt, the acting Personnel Officer. Mrs Quinn's report dated 27 November 2003 was forwarded to Mrs Stitt along with the entire file. Mrs Stitt considered all the evidence and ensured that the proper procedures had been followed. On 9 December 2003 Mrs Stitt wrote to the claimant advising him that having carefully considered all the facts and circumstances pertaining to the case, including oral comments, that she had concluded that the claimant was carrying out a secondary occupation whilst forwarding medical evidence of incapacity. The claimant was informed that his employment with the NICS was terminated from 31 December 2003 on disciplinary grounds. The claimant was advised in respect of his right to appeal to the NI Civil Service Appeal Board within three months in accordance with paragraph 9.4.1 of Part 5 of the Staff Handbook.
10. .6 The claimant's Trade Union representative lodged an appeal to the NICS Appeal Board on 16 February 2004. The reason for the appeal was stated as the delay in providing the actual detail of the investigations which were the core allegations against the claimant. The Trade Union representative challenged the identification of the claimant and referred to the claimant producing evidence that his vehicle was off the road. The representative specifically criticised Mrs Quinn's failure to respond after the meeting on 27 October 2003 and suggested that the procedures were not adhered to as serious time delays disadvantaged the claimant's evidence. A detailed submission was provided to the Appeal Board on behalf of the claimant. The tribunal heard evidence that a lengthy hearing took place before the Appeal Board on 19 July 2004 when evidence was given by Mrs Quinn and Mr Chris McCafferty the lead investigator. The decision of the Board was that the matters disputed by the claimant did not invalidate the conclusion reached by the respondent. The Board noted that the respondent did not interview two witnesses suggested by the claimant, however it was not persuaded that failure to do so rendered the investigation flawed.
11. 7 The claimant made the following complaints in respect of the disciplinary process:

(a) The claimant complained of delay in the provision of the full detail of the investigations. The outcome of same was received by Personnel Branch on 31 March 2003. The background in respect of the contents is as set out in paragraphs 4.3, 4.4 and 4.5 herein. The letter of 9 April 2003 to the claimant sought his comments in respect of the dates in question. The claimant's representative replied on his behalf as set out at paragraph 4.3 herein. Personnel Branch carefully considered the issues raised. The letter of 19 May 2003 formally charged the claimant and set out the detail of the observations. The respondent thereby invoked the disciplinary procedure under paragraph 1082. The claimant was advised that this was a serious matter and could lead to dismissal. The claimant's representative sought full disclosure in light of factual inaccuracies to ensure a fair hearing, otherwise he would be placed at a disadvantage in commenting on incomplete information. The respondent sought legal advice and anonymised records of the investigation were disclosed on 1 September 2003. The written comments forwarded on behalf of the claimant are detailed at paragraph 4.4 herein. The tribunal formed the view that although it would have been preferable if the details of the investigation had been forwarded at an earlier stage, the claimant was not significantly disadvantaged in presenting his case. The tribunal concluded that Personnel Branch was entitled to rely on Benefit Investigation Services to investigate on their behalf and await the outcome of this process. The respondent did not delay unnecessarily thereafter. The tribunal formed the view that the fact his vehicle was off the road was a matter which would have been apparent to the claimant on being advised of the relevant observation dates of 10, 11 and 12 December 2002.

(b) The claimant criticised the respondent for not interviewing two witnesses referred to by him in his response.

(1) Mr Breen is referred to at paragraph 4.3 herein. The respondent took advice from BIS in this respect and comments were provided. BIS defended the observations carried out but did not wish to approach the taxi firm for security reasons. Mrs Quinn took the view that there would be little to be gained by interviewing Mr Breen.

(2) The claimant provided an unsigned letter of 15 September 2003 from Mr Kevin Hillick stating that the claimant's car was undergoing repairs on 11 December 2002 for damage to the rear bumper and fitting of a new timing belt. Mr Hillick stated that the vehicle remained in his garage until 13 December 2002 and that during that time the claimant was driving his car. It was asserted by the claimant that the FIO observations could therefore not have recorded his car being driven on 11 and 12 December 2002 and were therefore fraudulent. Mrs Quinn explored this at the meeting on 27 October 2003 having been advised by BIS that there was no garage at the address referred to by Mr Hillick in his letter. The claimant indicated that Mr Hillick did the work as a 'homer' at his garage. The claimant indicated in response to Mrs Quinn advising that there was no garage at that address, that whilst some people might call it a driveway, he called it a garage. The claimant provided a copy of Mr Hillick's diary and BIS provided documentation in respect of the PSV test on 7 December 2002 which recorded faulty indicators, brake lights and dampness in the boot. The claimant addressed these minor repairs yet claimed that Mr Hillick took the car to the PSV retest for him on 11 December 2002 during his working day. Mrs Quinn found it surprising that the mechanic could do so. The claimant advised that he always did so. The claimant stated that he damaged the bumper after the retest and the diary entry reflected work to be done to the bumper and timing belt on 11-13 December 2002. Mrs Quinn noted that although Mr Hillick could not have known about the bumper in advance of 11 December (when the damage occurred), the diary entry would indicate that the car was booked in some time before 11 December 2002. The repair to the bumper is mentioned first yet the claimant's case was that the timing belt would have been booked in first.

The claimant gave evidence that his insurance permitted him to drive Mr Hillick's car from 11 to 13 December 2002. The claimant provided a photograph of the bumper showing it disconnected on one side which had been given to him by a friend in December 2002 as a joke. The claimant found the photograph in March 2003 and provided it to the respondent on 18 September 2003 in response to the investigators' statements. Mrs Quinn formed the view that the photograph could have been taken at any time. The vehicle was not undriveable as a result of the damage to the bumper as suggested by the claimant in his evidence. The claimant criticised the respondent's failure to interview Mr Hillick. The claimant's evidence to the tribunal was that Mr Hillick had a garage on the Antrim Road and he could offer no explanation as to why he had not mentioned this previously to the respondent during the disciplinary process. Mrs Quinn found the claimant's explanation on 27 October 2003, surrounding the timing of the PSV vehicle test and his car being repaired on 11 and 12 December 2002, to be unconvincing. In light of the fact that the letter might not be reliable and whilst the bulk of the evidence indicated that the claimant was working, Mrs Quinn did not think anything would be gained by interviewing either of the witnesses, having taken advice from BIS. The NICS Appeal Board noted that whilst it may have been helpful to deliberations for the respondent to have interviewed Mr Breen and Mr Hillick, the failure to do so did not render the investigation flawed. The claimant did not call Mr Breen or Mr Hillick to give evidence to the NICS Appeal Board on his behalf. The tribunal finds that it was not unreasonable in all the circumstances for the respondent to reach a decision without having interviewed Mr Breen or Mr Hillick.

(c) The claimant submitted that the evidence of the investigators was, as stated in submissions to the NICS Appeal Board, at best full of errors and at worst falsified evidence. The respondent considered each and every allegation raised by the claimant in the written submissions of 18 September 2003. Personnel Branch sought further comment from BIS by letter dated 24 September 2003. A detailed response from the lead investigator was provided as detailed at paragraph 4.4 herein to rebut the claimant's submissions. The lead investigator also provided a detailed account of the lighting conditions in which the identifications were made. The vehicle observed was registered to the claimant. The management of BIS expressed their confidence in the integrity of the independent investigation conducted by their staff. The claimant suggested that Personnel Branch should have conducted its own investigation as opposed to relying on BIS.

(d) The claimant's case was that the investigations were flawed and inaccurate. The claimant stated that this was a case of mistaken identity. The NICS Appeal Board noted that at the Appeal hearing the Fraud Investigation Officer readily confirmed that the claimant was the person he observed on the occasions recorded. The respondent did not call the lead investigator to give evidence to the tribunal. The claimant gave evidence in respect of the damage to his vehicle on 11 December 2002 and the repair to be carried out over three days from 11 to 13 December 2002 when the car was off the road. The claimant's evidence was that he was insured to drive any vehicle and was in fact driving Mr Hillick's car. The claimant's evidence was not consistent with the copy of Mr Hillick's diary as it was his case that the car would have been booked in for a replacement timing belt first of all, before he damaged the bumper on 11 December 2002. The observations were of a male person of similar build to the claimant driving a vehicle registered to the claimant and entering his home address using a key. The claimant was asked in cross examination if any other male person could have driven his car. The claimant was evasive and then suggested that his brother who had fair hair may have been able to drive the car but that he would need to check his insurance documents. The claimant subsequently stated forcefully that he was the only male person who could drive the vehicle. The tribunal found the claimant's evidence to be contradictory when he stated that he had not noticed that he had only received pension rate of pay in December 2002. The claimant initially gave evidence that this was because he had received a lump sum payment under Section 11 of PCSPS(NI). The claimant later gave evidence that he had been experiencing significant financial difficulties since 2001. The tribunal did not hear evidence from the Fraud Investigation Officers who were not called as witnesses by the respondent. The tribunal is however unable to make findings of fact in respect of the matters challenged by the claimant on the basis of the evidence presented to the tribunal by the claimant. The claimant produced three photographs of locations identified in the investigations however the tribunal found these to be inconclusive. The tribunal formed the view that the matters disputed by the claimant did not invalidate the conclusion reached by the respondent.

12. .8 The claimant gave evidence that he believed that the allegations against him were malicious and arose because he had relationship difficulties with his colleagues and his senior manager Mr Dennison. The claimant had not taken any formal action in respect of this complaint prior to the investigation being conducted by BIS. This action was commenced some months after Mr Dennison advised Personnel Branch by e-mail on 1 November 2002 that anonymous information had been received that the claimant was driving a taxi whilst claiming to be sick. The claimant did not raise this specific issue in his written submissions, at interview with Mrs Quinn or at the NICS Appeal Board. The claimant did not make any claim in respect of victimisation in his claim form. The claimant's senior manager received further anonymous information that the claimant had picked up a work colleague in his taxi on 16 August 2003 having been on sick leave from 6 August 2003. Mrs Quinn noted in her report that the claimant returned to work on Monday 18 August 2003. The claimant stated at interview on 27 October 2003 with Mrs Quinn that he was afraid to go out in August 2003 for fear that something would be raised against him again. The tribunal found the claimant's evidence to be contradictory in respect of this matter. The claimant initially stated that he was not afraid to go out rather that he was afraid to drive his car which was PSV plated. The claimant then clarified that he was off work as a result of a knee injury sustained at work. The claimant gave evidence that he was in fact unable to drive at this time having been advised by his doctor to rest his knee. The tribunal noted that there was no claim before it in respect of victimisation.

The claimant complained that the surveillance was not proportionate and queried the legality of the authorisation for the observations. The tribunal noted that the respondent's documentation reflected that the claimant's representative was afforded access to these records prior to the NICS Appeal Board hearing on 19 July 2004. On 17 November 2004 the claimant's representative confirmed at the Hearing for Directions that he had been provided with the relevant referral and authorisation papers. The claimant produced no evidence to support his contentions in this respect. The respondent submitted that it was reasonable for Personnel Branch to accept that the investigation by BIS had the necessary authorisation. The tribunal formed the view that it was not unreasonable for Personnel Branch to rely on the fact that the BIS investigation had been properly authorised.

The claimant stated that it had been the expectation of his representative that Mrs Quinn would provide a response to the matters raised on behalf of the claimant at the interview on 27 October 2003. The agreed minutes do not reflect this and Mrs Quinn gave evidence that she would take the information into account but would not normally issue a response. The tribunal did not accept the claimant's assertion that he was prejudiced by the absence of a reply.

13. .9 Mrs Quinn concluded that none of the evidence provided by the claimant called into question the investigators' observations. The tribunal finds that it was reasonable for the respondent to rely on the investigation conducted on its behalf by BIS who did so independently of the Social Security Agency. Mrs Quinn's evidence was that she considered all the material placed before her and gave careful consideration to same before making the recommendation contained in her report to Mrs Stitt dated 27 November 2003. Mrs Quinn addressed each matter raised on behalf of the claimant in detail, seeking clarification from BIS where necessary. The claimant did not suggest that he had been working for therapeutic reasons as he denied the content of the observations. Mrs Quinn noted that the conduct in question amounted to gross misconduct. Mrs Quinn concluded that none of the evidence provided by the claimant called into question the FIOs' observations. Mrs Quinn recommended dismissal as the claimant had destroyed the employment contract between employer and employee thereby making any further working relationship and trust impossible.

Mrs Stitt gave evidence that she carefully considered all the evidence before her and sought clarification from BIS in respect of the parking available in front of the Glenavon Bar. Mrs Stitt stated that she also considered if the correct procedure had been followed by Mrs Quinn and concluded that it had been. Mrs Stitt received Mrs Quinn's report on 27 November 2003 and issued her decision that the claimant should be dismissed on disciplinary grounds on 9 December 2003. The test is one of reasonableness on the part of the respondent, not what the tribunal might have done.

The tribunal formed the view that the investigation was fair and that the disciplinary process and NICS Appeal Board Hearing gave the claimant a full and fair hearing and an opportunity to state his case.

14. Law and conclusions

Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 states:

"An employee has the right not to be unfairly dismissed by his employer".

Article 130(1) of the 1996 Order requires that:

"In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held.

The tribunal having been satisfied that the respondent had discharged the two burdens under Article 130(1) and (2), Article 130(4) required that:-

"the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be treated in accordance with equity and the substantial merits of the case.

In this case the claimant was dismissed for a potentially fair reason.

The tribunal is required under Article 130 to ascertain whether the respondent acted reasonably. The tribunal is not entitled to substitute the conclusions it would have reached for those of the employer.

The tribunal found the case of British Home Stores -v- Burchell [1978] IRLR 379 to be of assistance. This was a case which involved an employee who was dismissed because the employer suspected or believed that she had committed an act of misconduct namely alleged acts of dishonesty. The tribunal had to decide whether the dismissal was unfair.

The Employment Appeal Tribunal stated:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, has carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being 'sure' as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter 'beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.'

In J Sainsbury plc -v- Hitt [2003] IRLR 23, this approach was approved by the English Court of Appeal as best reflecting the approach to be taken by tribunals in assessing misconduct cases.

The respondent received information that the claimant had been working in a secondary occupation whilst claiming incapacity. This was a serious matter of misconduct. The claimant acknowledged that he had read the SSA's booklet entitled Staff Conduct and Discipline on 2 July 1998. This code reflects that if an officer states that they are unwell when they are fit for work, such conduct is considered to be a disciplinary matter. The claimant had not requested permission to carry out other work and in fact denied having done so. The claimant complained of a flawed investigation which on his case was fraudulent. The claimant also complained that he had been prejudiced by the delay in his receiving the full statements made by the FIOs. This would relate to the third element of the Burchell test.

The tribunal concluded that the Respondent had a reasonable suspicion amounting to a belief that the claimant had been working in a secondary occupation whilst claiming incapacity and was therefore guilty of misconduct. The respondent had reasonable grounds on which to sustain that belief having carried out as much investigation into the matter as was reasonable in all the circumstances of the claimant's case.

The tribunal found that the respondent had acted reasonably in finding the claimant guilty of gross misconduct having reasonable grounds on which to sustain this belief. The tribunal therefore concluded that the investigation, disciplinary process and independent Appeal Board Hearing were conducted as fully and as fairly as could be expected of the respondent, the test being reasonableness.

The tribunal having satisfied itself as to the reasonableness of the process carried out went on to consider whether the respondent acted reasonably or unreasonably in treating the conduct of the claimant as a sufficient reason to justify his dismissal as required by Article 130(4), considering the 'equity and substantial merits of the case'. It is not for the tribunal to decide whether it would have imposed a lesser penalty than that imposed by the respondent. The question of the reasonableness of the sanction of dismissal was considered in Iceland Food Limited -v- Jones [1982] IRLR 439:-

(a) The starting point should always be the words of [Article 130(4)] themselves.

(b) In applying the Article an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they, the members of the tribunal, consider the dismissal to be fair.

(c) In judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.

(d) In many, although not all cases, there is a band of reasonable responses to the employee's conduct within which one employer may take one view and another quite reasonably take another.

(e) The function of the Industrial Tribunal as an industrial jury is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

The tribunal having considered all the evidence and submissions concluded that the respondent's decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted. The tribunal concluded that the claimant was not therefore unfairly dismissed.

Chairman:

Date and place of hearing: 26-29 March 2007, 4 April 2007, 25 May 2007, 30 May 2007 and 25 June 2007.

Date decision recorded in register and issued to parties: