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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuigan v Belfast City Council [2010] NIIT 183_09IT (14 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/183_09IT.html
Cite as: [2010] NIIT 183_09IT, [2010] NIIT 183_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 183/09
CLAIMANT: Joseph McGuigan
RESPONDENT: Belfast City Council
DECISION
The unanimous decision of the tribunal is that the claimant was not subjected to a detriment contrary to Article 73(1)(B) of the Employment Rights (Northern Ireland) Order 1996.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Ms E Kennedy
Mr R Hanna
Appearances:
The claimant was represented by Mr Patrick Moore, LLB of PM Associates.
The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by the Legal Department of Belfast City Council.
Sources of Evidence
1. The tribunal had several bundles of agreed documents before it. The claimant gave evidence on his own behalf. On behalf of the respondent, oral evidence was given by Trevor Martin, Steven Hewitt, Mark McBride, Helen Devlin, Jill Minne and Teresa McKenna.
2. There were also other witness statements before the tribunal from Donal Rogan, Karen Fennel-Jenkins, Tim Walker, Michael McAtackney, Jill Ferguson, Conor McCleave, Sonia Boyle, Valerie Cupples and Heather Louden. These persons were not called to give oral evidence to the tribunal and the tribunal has given weight to their statements only insofar as they collaborate evidence given orally by the persons above-named.
The Claim and the Defence
3. During the
hearing and by agreement the tribunal amended the legal issues before it to
read as follows:
a. Did the respondent subject the claimant to a detriment contrary to
Article 73(1)(B) of the Employment Rights (Northern Ireland) Order 1996 and;
b. Did the respondent comply with the requirements of the Statutory Dispute Resolution Regulations as defined in Schedule 1 of the Employment (Northern Ireland) Order 2003 in respect of the meeting of 11 November 2008?
The Relevant Law
4. The relevant law
relating to detriment on grounds related to Union membership or activities is
in Article 73(1) (B) of the Employment Rights (Northern Ireland) Order 1996 and
states as follows:
73-(1) A worker has the right not to be subjected to any detriment as an
individual by any act, or any deliberate failure to act by his employer if the
act or failure takes place for the sole or main purpose of -
(a) preventing
or deterring him from being or seeking to become a member of an
independent trade union, or penalising him for doing so.
(b) preventing or deterring him from taking in part in the activities of an independent trade union at an appropriate time, or penalising him for so, ……….”
Facts Found
5. (1) The claimant is a Building Control Surveyor (Entertainment Licensing) for the respondent.
(2) The claimant has worked for the respondent from 1 September 1984 and is still employed in the same capacity by the respondent.
(3) The claimant is a member of the union Northern Ireland Public Service Alliance (hereinafter called “NIPSA”) and was elected as NIPSA representative for Building Control shortly after he commenced employment with the respondent.
(4) The claimant became Chairman of NIPSA Branch 526 in November 2007.
(5)
Even prior to becoming Chairman
the claimant actively represented the interests of NIPSA members within
Building Control in employee relations matters. From 2004/2005 his
representation extended beyond the Building Control Service into other
departments of the respondent.
(6)
The respondent is a Council that
recognises Trade Unions and a Final Draft of the TU Facilities Agreement and
Guidelines on Time Off for Trade Union Duties and Activities was before the
tribunal. The claimant argued that NIPSA did not agree to this document,
although other Unions had agreed to it and cited an email dated 15 July 2005
raising queries about certain terms from Sharon Austin to Tom Wilkinson
(presumably NIPSA personnel). The claimant did not produce any subsequent
documents continuing to evidence NIPSA dissatisfaction with the agreement as
being contrary to the Statutory Right of Representation. In contrast the
respondent provided three minutes of Council bodies – two of the Trade Union
Facilities Group dated 24 August 2006 and 25 June 2007 respectively and one of the
Policy and Resources Committee dated 14 September 2006 which showed that there
was a Facilities Agreement in operation which was to be reviewed in September
2008.
(7) As part of his job the claimant can be called upon to visit nightclubs. From in or around August 2006 the Building Control Service had a number of concerns about a Belfast nightclub called “The Kremlin” frequented by the gay community and a prosecution ensued. Stephen Hewitt who is a Senior Manager in Building Control received an anonymous complaint from “Seamus the Sheep” about the activities of Building Control in relation to The Kremlin and repelled it vigorously in or around 12 October 2006. The claimant and various colleagues visited the Kremlin premises up to
25 November 2006.
(8)
In February 2007 Trevor Martin,
the head of the Building Control Office told the claimant that a complaint had
been made against the Building Control Service that it operated in a homophobic
and commercially motivated way to the extent that it was carrying out a
vendetta against The Kremlin.
(9)
On 5 February 2007 Trevor Martin
and others met with owners of The Kremlin. On 12 February 2007 Trevor Martin
received a formal written complaint from Andre Graham, a Director of The
Kremlin.
(10) Stephen Hewitt, a Senior Manager in Building Control and Mark McBride, the Business Support Manager, of Health and Environmental Services conducted an investigation into the complaint against the Building Control Service, and found that there was no substance in the complaints against the Building Control Service, but some issues of concern remained relating to the claimant and these were as follows:
(a) The claimant regularly DJ-ed in The Mynt Nightclub which could be a potential
breach of the Council’s code of conduct and Building Control practice;
(b) On 22 December 2006 the claimant passed adverse comments about The Kremlin to staff in the Glenpark Bar and showed them his Council identification; and
(c) The claimant DJ-ed every Friday night in the back bar of the Glenpark Bar in Belfast which is not a venue licensed for Entertainment. (This allegation alone could have had the potential to be viewed as gross misconduct).
The letter requiring the claimant to attend a Stage 3
preliminary investigation was dated 21 September 2007, some seven months after
receipt of the initial complaint from The Kremlin.
(11)
After completion of the Stage 3
investigation, Jim Shields, Waste Manager, and Helen Devlin, Human
Resources Advisor were required by Stanley Black, the then head of
Human Resources, to carry out a full and formal investigation into this matter.
(12)
Periodically the claimant
complained about delays in the respondent’s processes.
(13)
By a letter dated 12 December
2007 the respondent told the claimant that he was not to be given any licensing
responsibilities for The Diamond Group, Mynt Nightclub or The Kremlin and there
was to be a full formal Stage 3 disciplinary investigation into the three
allegations set out in Paragraph 10 above.
(14)
From January 2008 to July 2008
Jim Shields and Colin Devlin carried out this investigation. They interviewed
Brian Magill, Trevor Martin and Stephen Hewitt of Building Control and tried to
interview Bartley Murphy and Emma Crawford the persons whose statements
supported The Kremlin complaint. The claimant was interviewed on 4 July 2008.
The result of this investigation was that the complaints against the claimant
could not be substantiated but some recommendations were made and these were as
follows:
(a) Building Control Service should review the issue of conflicts of interest;
(b) A more formal process should be agreed to address the claimant’s private
DJing; and
(c) The need to moderate his language and tone in formal meetings should
be emphasised to the claimant.
(15) Jill Minne, the Acting Head of Human Resources had a meeting with the claimant in May 2008 to indicate that concerns had been raised about his behaviour in that complaints had been made that he was unnecessarily aggressive and used foul language to the extent that women, in particular, felt intimidated by him. She asked the claimant to reflect on this. This was an informal meeting.
(16) By a letter dated
26 September 2008 to the claimant from Donal Rogan, the respondent indicated
that it was going to conduct a preliminary investigation relating to the
following matters:
(1) The claimant’s unreasonable, inappropriate and potentially intimidating
conduct as a Trade Union Representative;
(2) An incident when the claimant allegedly behaved in an inappropriate, unreasonable
and potentially intimidating manner towards a Council Enforcement
Officer, this being wholly unreasonable given that the claimant
is a Principal Officer of the Council holding an Enforcement and
Regulatory role. This letter went into specifics of the alleged misconduct
and we are setting them out briefly as follows:-
(a) The conversation with Conor McCleave with the alleged paramilitary overtones.
(b)
During a disciplinary hearing on
12 August 2008 for Mr Gerard McKirby the claimant referred to
another Council Officer as “the nigger in the wood pile”.
(c)
During a sickness absence review
meeting with Ms Brenda Martin, the claimant and Ms Valerie Cupples on 12 August
2008, when Ms Cupples advised Ms McIntosh that she was issuing her with a
caution allegedly the claimant told Ms Cupples “to shove it where the sun don’t
shine”.
(d)
During a disciplinary hearing on
23 September 2008 in respect of Mr Peter Kane, the claimant allegedly swore and
was abusive to Sonia Boyle and Gerry Fleming who conducted the disciplinary
hearing.
(e) On 16 September 2008 the claimant was verbally abusive and obstructive to Mr Richard Hamilton a Litter Warden.
The tribunal noted that while the claimant did not
admit the paramilitary tone of the conversation with Conor McCleave, he did
confirm that a conversation had taken place. Furthermore, the claimant
admitted the incidences of inappropriate conduct in meetings that were set out
above and also while he denied that he had littered, he did admit verbally
abusive behaviour to the Litter Warden. As such he was required to attend a
preliminary investigatory interview under Stage 3 of the Council’s disciplinary
procedures on 8 October 2008.
(17) The tribunal noted that on the same day – 26 September 2008, the claimant was notified of the outcome of the allegations arising from The Kremlin nightclub investigation.
(18) By a letter dated 26 September 2008 the claimant was warned that he might be placed on precautionary suspension. At the meeting of Wednesday 8 October 2008, Donal Rogan confirmed the decision to place the claimant on paid precautionary suspension.
(19) By a letter dated
30 September 2008 the claimant raised a grievance about the incident of the
Litter Warden. The claimant advised that during his conversation with Mr Sam
Skimmin of 16 September 2008 he registered a verbal complaint about the conduct
of the Litter Warden Mr Richard Hamilton, and his grievance was that Mr Skimmin
had failed to act appropriately.
(20) By a letter dated13 October 2008 Brian Campfield, the Deputy General Secretary of NIPSA wrote protesting against the suspension and asking for further information about the claimant’s disciplinary investigation.
(21) By a letter dated
16 October 2008, Donal Rogan the Preliminary Investigating Officer indicated
that his grievance was inextricably linked to the disciplinary allegations set
out in the letter of 26 September 2008 and was being investigated as part of
that procedure.
(22)
By a letter dated 17 October 2008
Donal Rogan wrote to Brian Campfield giving details and clarification on the
nature of the claimant’s suspension. He said that Human Resources had advised
him that the claimant should not enter any Council premises during the
suspension for any purpose or in any capacity without first seeking permission
from his line management. This had the effect of preventing the claimant from
accompanying his children to activities in Belfast City Council premises.
(23) The tribunal was
also referred to a minute of a conversation between Kevin O’Doherty, Martin
Power and Conor McCleave, in which Conor McCleave indicated that he did not
want any disciplinary action to come out of his statement made against the
claimant and stated that the whole thing had been blown out of proportion.
(24) By a letter dated
24 November 2008 from Jill Minne to Brian Campfield of NIPSA, Jill Minne
confirmed that the claimant’s precautionary paid suspension was to be lifted on
certain terms. This was despite the fact that no hearing had taken place.
(25) The disciplinary
hearing into the five allegations took place on 6 January and 28 January 2009.
By a letter dated 4 March 2009 from Stephen Hewitt and Sharon Steele to Mr
Brian Campfield the respondent contended that all the allegations had been
substantiated but was prepared to allow NIPSA to deal with four out of five of
the allegations, leaving only the Litter Warden incident to be dealt with by
the respondent.
(26) The eventual
outcome of this allegation was that the claimant received a verbal warning.
(27) The second legal
issue was whether or not the Council had failed to comply with the proper
procedures set out in Schedule 1 of the Employment (Northern Ireland) Order
2003 in respect of the conduct of disciplinary proceedings. The claimant’s
difficulty related to a meeting on 11 November 2008. Half an hour before the
reconvened hearing was due to start Teresa McKenna of Human Resources handed an
outline agenda to Brian Campfield which sought to augment the allegations
against the claimant by the inclusion of two additional issues which had not
been mentioned previously and which occurred around six months previously. Mr
Campfield indicated that he would not entertain the new allegations and the
Council did not force the matter. They also indicated that they would hear his
grievance about the Litter Warden incident as it was in their view inextricably
linked to the disciplinary allegations. The claimant also rejected this
proposal and the Council did not force the matter.
Conclusions
(28) In the
presentation of the claimant’s case, Mr Moore raised a number of factual issues
and we respond to them as follows:
1. Did the respondent have valid grounds to instigate disciplinary
proceedings against the claimant in December 2006 and September
2008?
We consider that the respondent did have valid grounds to instigate disciplinary
proceedings as set out above. The complaint on behalf of “The Kremlin” did
refer to the claimant. Although there was some suggestion that The Kremlin
personnel had mixed up the Building Control Personnel that they
were actually complaining against, there was little to no doubt that the claimant
was involved because he was the person who DJ-ed in the Mynt nightclub (for whatever
number of occasions) and the claimant admitted to talking to one of the
staff at the Glenpark Bar. The fact that a complaint was made required the
respondent to investigate it. We consider that there were sufficient
grounds for investigation. Given the nature of the allegations and the
issue of conflict of interest, we consider it was particularly important for the
claimant’s role to be investigated.
2. What was the
reason for the delay in progressing and completing the disciplinary
investigation that was commenced in December 2006?
The tribunal was extremely concerned at the delay involved in progressing and
completing the investigation and disciplinary process arising out of The Kremlin
complaint. There were delays, which the tribunal considered were unacceptable.
Partly the delay appeared to be a difficulty in finding the actual persons who
made the complaints – Bartley Murphy and Emma Crawford. Bartley Murphy did
say to the investigators that he did not want to go forward with the
complaint. Despite efforts by Helen Devlin, Emma Crawford could not be
found, to substantiate her statement. However, a large part of the
delay was caused by the investigation effectively being run over again, in
that Helen Devlin and Jim Shields decided to interview everyone involved in
The Kremlin complaint over again.
3. Were any
complaints made at the relevant time by any employers or managers who were
party to the incidents under investigation from September 2008.
The incidents under investigation from September 2008 were the five
“complaints” set out in the letter of 26 September 2008. The actual written
complaint by Conor McCleave was an email of 24 June 2008 and Conor McCleave subsequently
confirmed to Human Resources in or around 26 September 2008 that he wanted the
matter to be investigated. However the tribunal was referred to the written
statement of Kevin O’Doherty and Martin Power which stated that Conor McCleave
had told them that he did not want the claimant to be disciplined. Whilst no
persons appeared to support this alleged statement, the tribunal has noted that
Conor McCleave only wished the claimant not to be disciplined. He had not
withdrawn his complaint or the desire for the matter to be investigated. The
tribunal also found that there were a number of complaints from female
employees of the Council such as Sonia Boyle, Valerie Cupples and Heather
Lowden. In addition to the other incidences of behaviour on the part of the
claimant, while none of the individuals had ever raised a formal complaint,
they had however indicated to Human Resources that they felt that there was a
difficulty with the claimant’s behaviour. This largely was the reason why Jill
Minne had an informal meeting with the claimant in May 2008. However the
claimant still indulged in inappropriate language in meetings after this
informal meeting.
4. Did the respondent act on the complaint made by the claimant in October 2008 about the conduct of the litter warden towards on that day?
The tribunal
finds that the respondent did act on the complaint in that it acknowledged
the grievance and indicated that it would be heard. Initially, the
respondent was minded to link this grievance to the hearing of the claimant’s
disciplinary allegations. The claimant and his representative Mr Campfield
indicated that that was not acceptable and the tribunal noted that the
evidence of the persons involved in hearing the disciplinary hearing arising
out of the five allegations that the claimant was entitled to raise his grievance
separately was not controverted.
5. What was the
outcome to the claimant’s complaint about the conduct of the litter warden
in October 2008? (See 4 above).
6.
Who
took the decision to place the claimant on precautionary suspension on 8
October 2008?
The
decision to place the claimant on precautionary suspension was taken by Donal
Rogan and Eamon Neeson as investigating officers of the particular complaints.
7.
What
was the reason for imposing a precautionary suspension on 8 October 2008?
The
reason for imposing a precautionary suspension was to prevent the claimant
from seeking to interfere with any witnesses.
8.
Did
the respondent review the necessity for a precautionary suspension at any time
after 8 October 2008?
The
respondent reviewed it as a result of Brian Campfield’s correspondence and
meetings with Jill Minne. By a letter dated 24 November 2008, from Jill Minne
to Brian Campfield, Jill Minne indicated that she was prepared to lift the
claimant’s precautionary paid suspension on certain terms.
9.
Did
the maintenance of the precautionary suspension prejudice the claimant’s
position in respect of the disciplinary proceedings?
The
tribunal found no evidence to suggest that the precautionary suspension in
any way prejudiced the claimant’s position. Whilst the claimant may have been
forbidden from using Belfast City Council property to carry out union business,
there was nothing to suggest that he had been in any way prevented
from talking to his union representative Mr Brian Campfield.
10. Did the outcome
to disciplinary proceedings justify the necessity for the precautionary
suspension?
The
difficulty with any precautionary suspension is that at the time it is imposed,
it is not known what the outcome of the investigation will be. Eventually in
this case, the claimant was issued with a verbal warning in respect of the
litter warden incident and the other items that were the subject of disciplinary
action, were to be dealt with by NIPSA. The tribunal has noted that the claimant
did not appeal this verbal warning.
11. Did the
respondent seek to augment the allegations against the claimant at the
reconvened investigation hearing on 11 November 2008?
The
tribunal finds that the respondent did seek to augment the allegations against
the claimant at this hearing but that this was resisted by the claimant and
Mr Brian Campfield.
12. Was the
respondent seeking to be fair to the claimant by introducing new allegations
against the claimant at the reconvened hearing held on 11 November
2008?
The
tribunal is not able to find any evidence to suggest that this is the case. Plainly,
these additional allegations should have been subject to the procedure
set out in Schedule 1 of the Employment (NI) Order 2003. All that Teresa
McKenna was able to suggest was that she was trying to save time. As
there was no suggestion that this was to benefit the claimant, the tribunal finds
that there was no fairness in what the respondent attempted to do.
13. What was the
reason for the respondent seeking to link the claimant’s grievance
with the disciplinary allegations made against him?
The
respondent’s reason as set out in correspondence was that it contended that
this grievance was inextricably linked to the substance of the litter warden
complaint. As these items arose out of the same factual matrix, the tribunal
can see that there may have been some merit in trying to deal with them
together, but as it is important to be seen to be transparent in disciplinary
proceedings, the respondent should preferably have sought to keep the
claimant’s grievance separate from the disciplinary allegation.
14. Did two senior
managers coerce a witness into making a written statement against the
claimant that contained unfounded allegations?
The
tribunal found no evidence that this was the case. Although Conor McCleave
was not called to give evidence, and neither were the two managers who
allegedly coerced him, the tribunal has noted that the memorandum of the
meeting between Conor McCleave, Martin Power and Kevin O’Doherty really only
said that Conor McCleave did not want the claimant to be disciplined.
15. Did any of the
witnesses to the allegations made against the claimant withdraw,
amend or resile from their purported evidence?
The
only evidence of amendment of evidence was in the evidence of Jill Minne and
Trevor Martin who both indicated that they were unsure about the date of
a meeting held with William Francey at which the claimant was discussed. A
number of witnesses who had submitted witness statements were not called to
give oral evidence against the claimant. If this is the matter of which the
claimant complains, the tribunal considers that all of the witnesses who failed
to give oral evidence fall into the category of witnesses who would be called
essentially to rerun the investigation carried out by the respondent. As such,
as a result of the case of Rogan v South Eastern Health and Social Services Care Trust [2009] NICA 47,
this is prohibited. All the tribunal is required to do is to consider whether
the three tests in the case of British Homes Stores v Burchell have been met. Mr Moore put forward the
case of Hollsworth v
Right Price Carpets and Furniture Ltd case reference 0192/07 as authority for
the proposition that a failure to call a relevant witness could justify making
an award of costs to the claimant. As the tribunal considers that the
witnesses not called were in the category of witnesses who would be called
purely to rerun the investigation, the tribunal does not consider that any
adverse inference should be drawn from the respondent’s failure to call such
witnesses. The tribunal considered that sufficient witnesses were called to
deal with the Burchell tests. The
tribunal also noted that Mr Moore indicated that he was not making an
application for costs and in the circumstances, as the Hollsworth decision was
primarily a decision on the issue of costs; the tribunal distinguishes it as
not being relevant to the circumstances pertaining in this case.
16. Did the
respondent subject the claimant to a detriment on grounds related to his
trade union activities?
There was no overall evidence of an actual comparator against which the claimant’s treatment could be measured. There were sundry attempts by Mr Moore to indicate that in relation to the investigation of private activities, the claimant had been differently treated to Mr Martin who played in a band and other members of building control who were not asked about personal activities. By virtue of the case of Shamoon v Chief Constable of the RUC, the comparator must be someone whose circumstances were the same or not materially different from those of the claimant to be a valid comparator. We would not accept Mr Martin as a valid actual comparator in this matter even in respect of this one issue as his circumstances were materially different. Whilst the building control service itself was initially under investigation, Mr Martin was not. The tribunal considers that this is a material difference which invalidates Mr Martin as an actual comparator. The tribunal therefore constructed a hypothetical comparator who was a person in all respects in the same position as the claimant except for the fact that the hypothetical comparator was not a person engaged in trade union activities. Would the treatment have been any different? The tribunal considers that the treatment would not have been any different. The tribunal considers that the sole or main purpose of the investigations and disciplinary procedures carried out irrespective of the eventual results, were directed to addressing conduct on the part of the claimant. Whilst the tribunal accepts that there was a background of considerable industrial difficulty in the respondent’s undertaking, the tribunal was not able to in any way connect this background to the trade union activities of the claimant except insofar that it was in his capacity as a representative to his members, that he indulged in inappropriate and at times intimidatory language. The tribunal considers that the respondent would have had a duty to investigate any worker who
indulged
in such behaviour, irrespective of their status and whether or not they were
protected under any statutory protection applying in this jurisdiction.
17. Did the
claimant suffer any detriment?
The claimant was subjected to a very lengthy investigation and particularly in
respect of the The Kremlin affair, the tribunal considers that this investigation
could have been completed considerably more rapidly than the personnel in the
Council actually concluded it. The tribunal has no doubt that the length of
the investigatory and disciplinary processes (and particularly the fact that
they overlapped on 26 September 2008), must undoubtedly have placed the
claimant under a great strain but does not consider this arose because of his
Trade Union activities.
The claimant was subjected to a precautionary suspension that was in excess of
that permitted by the respondent’s disciplinary procedures. Although the
respondent did review the suspension and lifted it on conditions, the tribunal
has no doubt that it fed the claimant’s feelings of strain, because he was not,
for example, entitled to take his children to activities on Belfast City
Council property without the consent of his line manager. Again, there was no
credible evidence that this was because of his Trade Union activities.
18. A direct result of his suspension was that the claimant was not entitled to enter Belfast City Council property and not entitled to use Belfast City Council facilities (including computer facilities to carry out his Trade Union business). However, the claimant was not otherwise prohibited from carrying out his Union activities during the suspension and the tribunal does not consider that the precautionary suspension constitutes a detriment for the purposes of Article 73. The tribunal has also noted that it heard no evidence from the claimant’s Trade Union to support the contention that the claimant suffered a detriment by being unable to carry out his Trade Union activities. On the contrary, the written evidence before the tribunal was to the effect that the claimant had had full support from his Trade Union throughout the
process.
Presumably, the claimant could have contacted his members with the assistance
of his Trade Union.
19. The
claimant also complained about the fact that an investigation was carried out
into the number of hours he spent on Trade Union activity in the course of his
employment. The results of the investigation showed that the claimant was
allowed to carry out his Trade Union activity, even representing across
Departments, and that his own service (Building Control) had no difficulty with
his performance of his own duties as a Building Control Surveyor. We do not
accept that an employer is not allowed to enquire into how a person (even one
with a protected status) carries out his duties. We consider that this was an
enquiry that was carried out fairly, no disciplinary penalty resulted to the
claimant and as such we do not consider that this constituted a detriment.
20. Was the action taken by the respondent for the purpose of deterring the claimant from carrying out Trade Union activities?
The
tribunal accepts that there was a background of industrial difficulty in West Belfast but could not find any objective evidence of a connection between the Trade
Union activities of the claimant and the disciplinary actions taken by the
respondent. The tribunal is satisfied that the sole and main purpose of the
respondent’s action was to deal with the claimant’s alleged misconduct, some of
which he had admitted. In reaching its decision the tribunal has had regard to
the three fold test of BHS-v-Burchell [1978] IRLR UKEAT108. The respondent
received complaints which it had a duty to investigate. We consider that there
was enough evidence before the respondent to justify the respondent’s having a
reasonable belief in the claimant’s guilt. We also find that the respondent carried out as much
investigation as was reasonable in the circumstances of the case. We found
nothing in the actions of the respondent in either the disciplinary or the
investigatory phases of each complaint that suggested that the claimant was
being subjected to a detriment on the ground of his Trade Union activities. We
have already indicated that we had deep concerns about the length of time it
took the respondent to carry out these investigations. We consider that they could
have been carried out considerably more swiftly. However, we do not consider
that the reason for delays was on the basis that the respondent wished to cause
the claimant a detriment on the grounds of his Trade Union activities. Taken
as a whole, there was nothing to suggest that the claimant was not being given
ample opportunity to carry out his Trade Union activities.
21. We found that the respondent certainly attempted to augment the allegation facing the claimant on 11 November 2008 but that the claimant and his representative resisted this. As no compensation is being awarded for the Article 73 claim, we do not consider that any compensation arises as a result of the respondent’s attempted to augment the allegations.
Chairman:
Date and place of hearing: 1- 4, 8-12 and 15 March 2010, Belfast
Date decision recorded in register and issued to parties: