Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1137_12IT.html
Cite as: [2013] NIIT 1137_12IT, [2013] NIIT 01137_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1137/12

CLAIMANT: Scott Bond

RESPONDENT: Keys Group

DECISION

The decision of the tribunal is that the claimant’s claim is dismissed.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Members: Mrs S Doran

Mrs T Kelly

Appearances:

The claimant was represented by Mr Gerry Daly of Francis Hanna & Co, Solicitors.

The respondent was represented by Mr Peter Redman of Northgate Arinso Employer Services.

SOURCES OF EVIDENCE

1. The tribunal heard oral evidence from the claimant and Mrs Kelly Looker and received an agreed Statement of Facts together with a bundle of relevant documents.

THE CLAIM AND THE RESPONSE

2. The claimant brought a claim of unfair dismissal arising from the termination of his employment with the respondent. It is material to note that the claimant lodged his claim before he received the respondent’s decision in relation to his internal appeal. In its original response the respondent contended that the claimant was fairly dismissed for gross misconduct following a disciplinary hearing that was conducted in the claimant’s absence due to his non attendance. The response was subsequently amended by consent to include the contention that the claimant was fairly dismissed for some other substantial reason. The latter contention lies at the heart of the dispute between the parties. For this reason it is appropriate to set it out in full at this juncture:-

“The disciplinary hearing considered a number of allegations of gross misconduct and a matter considered to be ‘some other substantial reason’ (SOSR) which was the finding of the Multi Agency Sharing to Safeguard Meeting which found that the claimant posed a risk to children.

The disciplinary hearing found some, but not all of the allegations of gross misconduct proven and also found SOSR was made out as well. The claimant was dismissed. The claimant appealed the decision to dismiss him and whilst the appeal overturned the findings of gross misconduct it did uphold the SOSR finding and confirmed the dismissal for this reason.

Whilst the safeguarding meeting has no statutory authority its members do include two Trusts who place children in the respondent’s homes and who of course can remove children already placed and the respondent has a genuine concern that if they continued to employ someone who was believed to pose a risk the Trusts would not place children and/or remove them. Moreover the matter was reported to the regulatory bodies the NISCC and the ISA and would be subject to lengthy investigation during which the claimant would have to be suspended. It is contended that all these matters amount to some other substantial reason to terminate the claimant’s employment and the respondent will rely on the decision of the Employment Appeal Tribunal in Henderson v Connect (South Tyneside) Limited [2010] IRLR 466.”

THE FACTS

3. The facts are largely taken from an agreed Statement of Agreed Facts save for such elaboration and correction as is necessary due to the evidence that we heard and the documents that we were referred to. The tribunal is grateful to the parties for providing the Statement of Facts and the attached documentation which we took time to read before hearing the oral evidence. This helped reduce the hearing time and is in harmony with the Tribunal’s Overriding Objectives.

4. The claimant commenced employment with the respondent in 2001 and he was employed as a Residential Child Care Worker in children’s homes run by the respondent. The claimant was educated to GCSE level and had seven passes including Mathematics and English but had no formal child care qualifications. The claimant originally worked for Family Support services in England and moved to Northern Ireland with the same organisation initially on a temporary basis. The claimant’s employment transferred to the respondent in 2004 and at the time of his dismissal he was employed at the respondent’s children’s home, Meadowfields Residential Unit, in Templepatrick.

5. On 30 November 2010 the claimant was suspended pending the investigation of an allegation of gross misconduct. The matter alleged was that the claimant inappropriately touched a young female resident on her breast while in the home car.

6. The suspension was confirmed by letter dated 2 December 2010. The letter informed the claimant that the allegation would be investigated and that as it involved a young person the respondent was duty bound to provisionally refer him to Independent Safeguarding Authority (“ISA”) for inclusion on their barred list. The Northern Ireland Social Care Council (“NISCC”) was also notified on 2 December 2010 that the claimant had been suspended due to allegations of gross misconduct by a young person. In addition, the matter was reported to the Belfast Health and Social Care Trust (Gateway Services).

7. On 19 January 2011 ISA wrote to the claimant and informed him that it had decided to consider whether or not he should be included in the Children’s Barred List and/or the Adults’ Barred List. On 28 January 2011 the Belfast Health and Social Care Trust (Gateway Services) wrote to the claimant and his partner, Ms Power, and advised that Social Services would no longer be involved with their family. The letter continued and stated that following an initial assessment there were no concerns and recorded that they did not wish for support at this time. The letter also referred to the possibility of a child being added to the SOCCARE system but that this would only occur if the claimant was found guilty of the alleged offence.

8. The claimant was also interviewed by the PSNI and a file was sent to the Public Prosecution Service (“PPS”). This had the effect of delaying the respondent’s internal investigation. By letter dated 28 March 2011 the PPS informed the claimant that having considered the evidence available it had decided not to prosecute the claimant. The respondent was informed of this outcome on 18 April 2011.

9. The respondent then conducted its own investigation and the claimant attended an investigatory meeting on 28 April 2011. The investigating officer, Ms Lauran Magee completed her report on 25 May 2011. The report described the allegation as follows:-

“A young person made a disclosure on 29.11.10 that – prior to going to Lakewood and in the old staff car – “Scott had put his hand down my bra and touched me.”

Ms Magee’s report concluded that no further action would be taken due to lack of evidence and that the claimant could return to work. The report did not contain any analysis of such evidence as there was but it would seem likely that it was simply one person’s word against another with no corroborating evidence. Ms Magee’s report also included an action plan which stated that the claimant should complete refresh training for professional boundaries.

10. By letter dated 4 May 2011 the claimant was advised that the investigation had been completed and that no formal disciplinary action would take place against him. The claimant was therefore required to return to work on 6 May 2011. The claimant duly returned to work on that date.

11. On 17 May 2011 the respondent wrote to ISA and informed it that having investigated the matter all allegations were found to be unsubstantiated, there would be no further action and the claimant had since returned to work.

12. On the same date the respondent wrote to the NISCC and informed it that the allegation made to the police by a young person against the claimant had been investigated and found to be unsubstantiated. This letter described the allegation in terms of grooming but we are satisfied that this was intended to refer to the same incident.

13. On 19 May 2011 ISA wrote to the claimant and advised that having concluded its enquiries and considered all the information available, it had decided that it would not be appropriate to include him in the Children’s Barred List or the Adults’ Barred List. The letter advised that the information would be retained by ISA and may be taken into account should further information come to its attention in the future.

14. On 20 May 2011 a Strategy Meeting was convened by the Northern Health and Social Care Trust (“NHSCT”) which made recommendations in respect of Meadowfields Residential Unit (Keys) including the holding of a Sharing to Safeguard Meeting.

15. On 23 May 2011 the claimant was suspended pending the investigation of an allegation of gross misconduct. The allegation was of inappropriate conduct and included sexual grooming of a young female resident. The claimant was not permitted to return to work before his dismissal on 2 April 2012. On 24 May 2011, the respondent wrote to the claimant and confirmed his suspension. Details of the alleged gross misconduct were provided other than to say that it took the form of a serious breach of the Care Standards Act. The letter further advised the claimant that he would be informed of the outcome of the investigation and that he would be provisionally referred to the ISA for inclusion in their barred list. Details of the allegations were provided in 2012 when the respondent decided to take disciplinary proceedings against the claimant in 2012 (see paragraph 26 below).

16. On 31 May 2011 a Sharing to Safeguard Meeting was convened under the lead of the Northern Health and Social Care Trust. This was a multi-agency meeting and it was held in accordance with guidance issued by the Department of Health, Social Services and Public Safety and entitled Circular HSS CC3/96 Revised Sharing to Safeguard.

17. The meeting was chaired by Mrs Judith Brunt, Head of Service, Alder House, NHCCT and in attendance were Ms Maria Maguire, Principal Social Worker, Grove Wellbeing BHSCT, Ms Suzanne Cunningham, Inspector RQIA, Mrs Helen Pedlow, Social Worker Service Manager, Manse Road NHSCT, Mr Nick Robinson, Social Worker Service Manager, Antrim Family Centre NHSCT, Detective Inspector Chris St John, Mrs Breige Bradley Social Worker Service Manager, Route House Ballymoney NHSCT, Detective Sergeant Siobhan Ennis, Ms Ruth Browne Senior Social Worker Carnmoney Road NHSCT, Ms Ruth Kernohan, Acting Senior Practitioner 16 + Service Magherafelt NHSCT, Mr Sean McIlmunn Social Work Service Manager, Alder House NHSCT, Ms Clare Joudeh, Senior Social Worker Shankill Centre BHSCT and by two members of the respondent organisation, Ms Julie Hamilton and Ms Deirdre White the latter of whom was described in the minutes as a manager at Meadowfields. The purpose of this meeting as described by Mrs Brunt was to consider whether the claimant’s behaviours were an employment/conduct issue or whether the concern was that the claimant posed a risk to children and if the latter to agree a plan of action to address the situation.

18. Mrs Brunt drew attention to the chronology of events as recorded at the Strategy Meeting and Ms White provided a detailed report (recorded in the minutes) in which she addressed eleven separate allegations against the claimant. The claimant was not invited to attend the meeting and therefore did not have any opportunity to directly address the concerns expressed with the participants in the meeting either at that time or any time thereafter. Ms White’s report reads as follows:-

“29/01/10 – Lakewood care staff made a complaint on behalf of YP3 while she was placed in secure accommodation. YP3’s allegation stated that Scott had given her cigarettes, that Scott would harm another person, she alleged that he expressed dissatisfaction at the treatment she received from an older man she was liaising with at the time and that further alleged that Scott text this other person from YP3’s phone.

Investigation interviewed – held on 16/02/10 by D White and J Harper. No supporting evidence found to uphold the allegation. NHSCT aware of investigation and the outcome.

05/06/10 – YP1 alleged that YP3 told her she had sexual intercourse with S Bond.

Investigation interview held on 11/06/10 by D White and J Harper. No supporting evidence found to uphold allegation. NHSCT aware of investigation and outcome. YP3 denied that she had alleged she had sexual intercourse with S Bond. YP1 continued to say that YP3 had told her this information. When asked why she had not shared this information right away, YP1 could not provide an answer. Information passed on to PSNI PPU Ballymena who informed Keys that no action would be taken. Trust social worker informed and agreed no action to be taken.

07/09/10 – YP3 had alleged that S Bond had pushed into her as he walked up the stairs. YP3 went on to state that S Bond had pushed into her on more than one occasion that day.

Investigation interviewed – held on 10/09/10 by D White and J Harper. No supporting evidence found to uphold the allegation. NHSCT aware of the investigation and the outcome. YP3 was made aware by the manager and co-worker she could report the matter to the PSNI. YP3 choose not to do so. S Bond alleged that on the day in question YP3 had gone out of her way that day to seek S Bond out and had purposely walked into him.

18/09/10 – YP3 alleged that S Bond had ‘slammed’ the office door in her face. YP3 had been having a disagreement with another YP in the house and she had gone to the office and demanded that S Bond speak to the other YP about his behaviour. Care staff who witness the altercation between YP3 and the other YP stated that YP3 had sought an argument with the other YP.

Investigation interview – held on 12/10/10 by A Dillon and J Harper (delay in investigating the complaint was due to S Bond being on holiday). No supporting evidence found to uphold allegation. NHSCT aware of the investigation and the outcome. YP3 wrote a letter to S Bond stating she wanted to ‘drop the matter’. YP3 went on to say in the letter that she was now allowed to go out with male staff on her own, that she missed S Bond and wanted him to take her out for a coffee once it was agreed at her LAC review that he could take her out.

28/10/10 – YP1 and mum alleged that she had gone missing from care on the 27/10/10 while out with S Bond that they had not been in Lisburn going to the cinema, as was the plan, but that S Bond had dropped her off in Ligoniel. On return to M/fields YP1 alleged that she had sexual intercourse with young male and oral sex with another. PSNI care unit where contact but YP1 refused to speak to the PSNI or hand over any items of clothing she wore that evening.

Investigation interviewed – held on 29/09/10 by D White and J Harper. No supporting evidence found to uphold allegation. BHSCT aware of the investigation and the outcome. D White met with Maria Maguire PSW on 01/11/10 to discuss the allegation and the investigation process that Keys would be following. Mum informed D White that she had details of a witness who could verify that YP1 was dropped off in Ligoniel on the evening of 27/10/10 by S Bond. This information was passed on to the social worker for YP1 in the BHSCT as Keys would not have the remit to begin interviewing others outside the Key’s group. Both mum and YP1 dissatisfied with outcome of investigation.

30/10/10 – YP1’s mum alleged that S Bond had assisted her to go missing from care before by giving her lifts to a certain area and provided her with money for public transport.

Investigation interviewed – held on 03/11/10 by D White and J Harper. No supporting evidence found to uphold allegation. BHSCT aware of the investigation and the outcome.

30/10/10 – YP3 alleged that S Bond provided her with cigarettes to smoke in her room.

Investigation interviewed – held on 03/11/10 by D White and J Harper. No supporting evidence found to uphold allegation. NHSCT aware of the investigation and the outcome.

04/11/10 – YP1 alleged that S Bond bought her a top up for her mobile phone.

Investigation interviewed – held on 03/11/10 by D White and J Harper. No supporting evidence found to uphold allegation. NHSCT aware of the investigation and the outcome. YP1 did provide a receipt for a £15.00 top form a local shop. S Bond was on duty the day this top up was bought. The central log states clearly that S Bond had taken another YP to the shop. YP1 and mum had asked that we check the camera footage in the shop on the day in question. Both parties where advised that we had no authority to do so. Information passed on to BHSCT social worker to follow up.

29/11/10 YP3 alleged that Scott Bond had sexually assaulted her by putting his hand into her bra. YP3 also alleged that S. Bond smoked in the house car.

Investigation interview – could not be carried out until the police carried out their own investigation into the matter. While the police investigation was ongoing S Bond was suspended from duty without prejudice. Once the police investigation was completed the file was sent to the PPS. PPS stated that they could not prosecute the case due to lack of evidence (sic). Keys held their own internal investigation into the matter on 28/04/11 once the police investigation was completed. Investigation carried out by Laura Magee from HR department. No supporting evidence was found to uphold allegation. NHSCT aware of the investigation and the outcome.

04/05/11 – YP1 made two further allegations when D White informed her that S Bond would be returning to work at M/Fields. 1. YP1 allege that S Bond took her into Belfast to have his car cleaned before it was MOT and then took her to have the car MOT’d. In accordance with her risk assessment YP1 is not allowed in Belfast unless attending contact or medical or other agreed appointments. 2. Alleged that S Bond took YP1 into Belfast city centre while she was a patient at Beachcroft to have something to eat. While allegedly in Belfast with S Bond YP1 Alleged that she stole from a shop and that S Bond was aware of this and did nothing about it.

I have been directed to deal with these complaints via a practice issue discussion in supervision. To also provide S Bond and YP1 the chance to meet with each other with the manager of M/Fields present and YP1 social worker to discuss any unresolved issues between either party and use this mediation meeting to resolve these matters.”

Ms White then went on to refer to a delay in the investigation process due to YP1 making a formal complaint to the PSNI that the claimant was ‘grooming’ her by helping her to abscond, giving her money for public transport, providing her with cigarettes and buying a top up for her phone.

19. Ms Hamilton provided the meeting with a list of the claimant’s previous suspensions and warnings. In 2006 there was an allegation that the claimant gave cigarettes to a young person and used foul language in front of a young person. No further action was taken in relation to the cigarettes but the claimant received a final written warning in relation to the use of foul language. In 2007 there was an allegation that the claimant assaulted a young person and another of providing cigarettes. No further action was taken in relation to either allegation. In 2008 the claimant received a written warning for insubordination.

20. Ms Hamilton also reported on a meeting that she and Mrs Pedlow had with the claimant the previous week during which the claimant denied all of the allegations. Ms Hamilton stated that the claimant was asked whether he had any insight into why these allegations were being made but that he did not really reflect on this. The claimant did however draw attention to how complex the children were and lack of support of unit managers.

21. A discussion then took place with several of the participants contributing. Keys staff referred to similar concerns being reported in England, namely giving cigarettes to young people, inappropriate/foul language and disregard of care plan. Ms White advised that she had never witnessed the claimant acting inappropriately but that he would perhaps need more guidance than other staff. Ms Browne commented that the claimant failed to see his actions as inappropriate. Ms Hamilton advised that the claimant did not appear to protect himself and gave the impression that he didn’t avail of advice. Mr McIlmunn made similar comments. It was noted that no other allegation had been made against any other member of staff. Ms Maguire advised that YP1 and her mother knew the system well and would be aware “which buttons to press”. Keys staff explained that YP1 used the term ‘grooming’ but made no sexual offence allegation against the claimant. The PSNI advised that YP1 was asked to explain what she meant by that term and that she gave a viable description. Detective Sergeant Ennis suggested that the claimant possibly exploited the situation he was in and that it was classic behaviour to place himself in a vulnerable children’s home. Detective Sergeant Ennis was of the view that on the balance of probability it [i.e. grooming] had happened. Mrs Pedlow stated that she felt uncomfortable about the situation and highlighted the vulnerability of the children placed with the respondent. There was also a debate about both young persons having made previous false allegations during their care history. Ms Browne queried the claimant’s general suitability, not having strong boundaries and not having good skills at deferring conversation about his partner and private life in general. She highlighted that one of the young persons concerned could be very nasty to the claimant and the consistency of allegations about giving cigarettes. She felt that perhaps the claimant was trying to get on the same level as the young people but lacked insight as to when to pull back and self protect. In relation to the practice issues Ms White commented that the claimant never seemed to take any advice on board.

22. The majority of professionals at the meeting felt that on the balance of probability the claimant posed a risk to children and they made six recommendations as follows:-

· A further referral to be made to the Belfast Gateway Team in respect of the outcome of the meeting in respect of the claimant’s own child.

· The claimant to be advised of the outcome of the meeting within 7 days. The claimant to be advised that he was not permitted to be alone with children or any young person below 18 years of age without prior approval from a person with parental responsibility for the child.

· The claimant’s name to be logged under SOSCARE under code 98 (Sharing to Safeguard).

· The claimant’s partner to be made aware of potential risks and outcome of the meeting. The respondent’s staff to also be clear with the claimant’s partner not to bring any young people looked after by the respondent to the family home.

· The claimant to be advised to contact his solicitor and seek legal advice.

· The respondent to offer the claimant support services.

23. As referred to above the claimant was also referred to the NISCC, the relevant regulatory body, which convened a Preliminary Proceedings Committee meeting to consider imposing an Interim Suspension Order in respect of the claimant pending full investigation. The committee received a statement from Ms Angela McKnight, the respondent’s Director of Human Resources, dated 6 October 2011. In the introductory paragraphs of this statement Ms McKnight referred to the allegation made by a Young Person “A” on 29 November 2010 that the claimant sexually assaulted her by touching her breast. Ms McKnight noted that the claimant was suspended but that the allegation could not be substantiated and as a result he returned to work on 24 May 2011. The claimant was then suspended again due an allegation of grooming by Young Person “B”. Ms McKnight then referred to the Sharing to Safeguard meeting and set out its recommendations. Ms McKnight then set out in summary form all eleven allegations made by Young Persons “A” and “B” as follows:-

“29/1/10 “A” reported that Scott Bond had given her cigarettes and alleged that he had expressed dissatisfaction at the treatment she had received from an older man she was liaising with at the time. She further alleged that Scott Bond sent a text to this man from her own phone. The matter was investigated but no supporting evidence was found to uphold the allegation. The Trust was advised of the investigation and the outcome.

5/6/10 “B” alleged that “A” told her she had sexual intercourse with Scott Bond. An investigation found that the allegation could not be upheld. The information was passed on to the PSNI who informed Keys Group that no action would be taken. The Trust were informed and agreed no action to be taken.

7/9/10 “A” alleged that Scott Bond had pushed into her as he walked up the stairs and did this on more than one occasion. The matter was investigated and no evidence found to uphold the allegation.

18/9/10 “A” alleged that Scott Bond had slammed the office door in her face. On the basis of evidence from other staff the investigation found that the allegation could not be upheld.

28/10/10 “B” and her mother alleged that when she had gone missing from care the previous day when she was out with Scott Bond that he had dropped her off in Belfast instead of going to Lisburn which was authorised. When she returned to the Unit she also alleged that she had sexual intercourse with 2 men during the time she had absconded. PSNI were contacted but “B” refused to co-operate with them. No supporting evidence was found to uphold the allegation.

30/10/10 “B’s” mother alleged that Scott Bond had assisted “B” to go missing from care. An investigation was carried out and no supporting evidence found. The Trust was made aware of the investigation and the outcome.

30/10/10 “A” alleged that Scott Bond provided her with cigarettes to smoke in her room. The matter was investigated and no supporting evidence found to uphold the allegation. The Trust were made aware of the investigation and the outcome.

4/11/10 “B” alleged that Scott Bond bought her a top-up for her mobile phone. The matter was investigated and, whilst a receipt was produced to show that “B” had spent £15.00 on a top-up from a local shop that day there was no evidence to substantiate the claim that Scott Bond had bought it. All relevant information was passed to the Trust’s social worker to follow up.

29/11/10 “A” alleged that Scott Bond sexually assaulted her. No further action was taken due to lack of evidence to support the allegation.

4/5/11 “B” made two further allegations that Scott Bond took her into Belfast with him to have his car MOT’d despite the fact that her risk assessment does not permit her to be in Belfast and she also alleged that Scott Bond took her into the City Centre where she stole from a shop. She alleged that Scott Bond was aware of this and did nothing about it. These complaints are to be dealt with via a practice issue direction in supervision sessions."

Ms McKnight confirmed that the allegations had been found not to be proven save for those in relation to 4 May 2011 which were to be dealt with via a practice issue discussion in supervision sessions. Ms McKnight described the allegation made by “A” in relation to the alleged sexual assault on 29 November 2010 and the allegation made by “B” on 24 May 2011that the claimant had been ”grooming” her.

24. On 24 October 2011 the NISCC Preliminary Proceedings Committee issued a decision pursuant to Rule 5 of Schedule 1 to the NISCC (Conduct) Rules 2007 not to impose an Interim Suspension Order on the claimant. The Committee received evidence and submissions from the Council and the claimant (the registrant). It also received legal advice from its Legal Adviser which is set out in the body of its decision. The Committee gave reasons for its decision as follows:-

“Whilst the Committee was made aware of the outcome of the Sharing to Safeguard meeting of 31 May 2011, the Committee was not presented with any reasons or rationale for the stated outcome. Furthermore, from the evidence adduced today, the registrant did not have an input to that meeting nor was he or indeed the Committee provided with the minutes of the meeting.

The Council referred the Committee to the allegations against the registrant set out in the statement of Ms McKnight. That same statement confirms that 10 of those allegations have been ‘found to be not proven’. No evidence of the allegations of inappropriate touching or grooming was contained in the statement of Ms McKnight. Indeed, no evidence whatsoever was provided by the Council to support the allegations of inappropriate touching or grooming.

The Committee heard evidence from three credible witnesses who all confirmed, based on their experience of working with the registrant, that he does not pose a risk to young people or vulnerable adults. Furthermore, fourteen additional statements (i.e. from individuals other than the three people who gave evidence today) were provided to the Committee which were supportive of the registrant.

The registrant gave evidence that he had recommended to management that there should be 2:1 supervision ratio to safeguard staff and the young person. This was not challenged by the Council in the course of today’s hearing.”

25. On 27 January 2012 Ms McKnight wrote to the claimant and invited him to attend an investigatory meeting with the investigating officer, Ms Julie Hamilton, on 2 February 2012. The claimant responded by letter dated 30 January 2012 addressed to Wendy Chambers in which he stated that he believed that all matters had been fully investigated and that a written response made by him to previous questions in July 2011 was sufficient. This letter was passed to Ms McKnight who responded on 27 January 2012 that whilst she understood what the claimant was saying she wished nonetheless to offer him the opportunity to state his case at an investigatory meeting in relation to the ongoing investigation.

26. On 17 February 2012 Ms McKnight wrote to the claimant and advised that following the respondent’s investigations it had been decided that there was a case for the claimant to answer and required him to attend a disciplinary hearing on 24 February 2012. The claimant was informed that the hearing would be conducted by the Chief Operating Officer, Wendy Chambers and set out the matters that would be considered at the hearing. These are as follows:-

1. Allegation from a young person that you had; Given her cigarettes; Said you would harm another individual; Sent a text using a young person’s phone.

2. Allegation that you pushed into a young person as she was walking up the stairs.

3. Allegation that you slammed a door in a Young Person’s face when she went to ask you for help.

4. Allegation from a Young Person’s mother that you dropped her off in Ligoniel and not Lisburn and as a result the young person had sex with a man.

5. Allegation from a young person’s mother that you had been assisting her daughter to go missing by giving her lifts and money.

6. Allegation that you bought a mobile phone top up for a young person.

7. Allegation that whilst out in the home car with a young person you sexually assaulted her.

8. Allegation that you smoked in the home car.

9. Allegation that on more than one occasion you took a young person into Belfast in direct contravention of their care plan.

10. Allegation that you were aware that a young person in your care had stolen from a shop whilst in Belfast yet you failed to report this.

11. Allegation from a young person that you were grooming her by buying her mobile phone top ups, giving her cigarettes and provided her with money for transport.

12. Allegation of failure to attend two investigation meetings despite formal requests being made.

13. Allegation of breach of trust.

The evidence upon which the respondent relied was enclosed with the letter and the claimant was advised that if the allegations were found proven they would be considered gross misconduct and that his employment might be summarily terminated. The claimant was also informed of his right to be accompanied by a work colleague or trade union official and provided with a copy of the respondent’s Disciplinary and Dismissal Procedure.

27. A separate letter from Ms McKnight also dated 17 February 2012 invited the claimant to attend a further meeting on 24 February 2012 also to be conducted by Ms Chambers the purpose of which was stated to be to discuss the Northern Trust’s belief that the claimant posed a risk to children and the impact that this has on his ongoing employment. The claimant was warned that in the event that no suitable alternative could be found it might result in his dismissal.

28. The claimant contacted the respondent by telephone and an email of 22 February 2012. The claimant indicated that he would not be attending the hearings as he had not been given sufficient time to arrange legal representation or seek legal advice. The claimant also followed this up in writing by replying to both letters on 23 February 2012. In his letter the claimant stated that the request to attend the meetings was bizarre because save for the allegation of grooming all of the allegations had been fully investigated and found to be unsubstantiated; the NISCC was presented with the same allegations and took the view that it was unreasonable and wholly unjust for the respondent to refer allegations that had already been investigated and found to be without foundation and in consequence had ruled in favour of his continued registration and fitness to practice; that the respondent was under no obligation to act on the outcome of the Sharing to Safeguard Meeting provided that it could justify its decision and that he was challenging the outcome; that the respondent would be aware from the claimant’s grievance of the very challenging and deficient working context in which he and other staff had been placed and that the levels of risk and absences of support systems resulted in him being placed in extremely compromising situations. The claimant went on to ask Ms McKnight to clarify why allegations that had already been investigated and found to be unsubstantiated were included. The claimant also asked Ms McKnight to clarify what exactly was meant by ‘Breach of Trust’, noted that it appeared to be a new allegation and contended that none of the documents provided to him evidenced breach of trust as he understood the term. The claimant also queried the decision to include allegations about non attendance at investigatory meetings.

29. On 24 February 2012 Ms McKnight replied in writing to the claimant’s email of 22 February 2012 and informed him that the disciplinary hearing had been rescheduled on 9 March 2012.

30. On 5 March 2012, the claimant’s solicitor, Mr Daly, wrote to Ms Chambers and informed her that he had advised the claimant not to attend either meeting until he received a response to the following questions:-

“1. How can you possibly justify leveling disciplinary charges against [the claimant] for the matters set out in your letter, in light of the findings of the investigation into these various matters, that these allegations could not be substantiated as confirmed by Angela McKnight your Director of Human Resources in her statement of 6^th October 2011?

2. Have you informed the Northern Trust of these findings to allow them to convene another Multi Agency meeting to review its findings? If not why not?”

31. The hearings that were to take place on 9 March 2012 were postponed until 2 April 2012. Mr Daly by letter of 20 March 2012 noted that the hearing would be reconvened and pressed Ms McKnight for an answer to his queries.

32. On 29 March 2012, Ms McKnight replied to Mr Daly’s letters of 5 and 20 March 2012 as follows:-

“In regards to your first question with have called a disciplinary meeting with [the claimant] as we believe we are now in a position to proceed with some form of conclusion in these matters. [The claimant] has been suspended on full pay for a significant amount of time, and matters have been investigated to the best of our ability.

It is our belief that given the significant number of allegations which have been levied against [the claimant] over the last number of years from various young people in our care and given the significant findings of the Multi Agency Meeting within which it was ruled by parties outside of our organisation that [the claimant] posed a risk to children Keys as an organisation has no alternative but to look at each of these allegations again and make decisions on [the claimant’s] future employment.

As stated in my previous correspondence to your client the matters can be discussed in full at his disciplinary hearing on Monday 2^nd of April. At this hearing [the claimant] will be given every opportunity by the disciplinary chair to state case and indeed to cover all areas under investigation. No decision has been made in regards to [the claimant’s] ongoing employment and none will be made until these meetings occur. Therefore no communication has taken place with any outside parties including the Northern Trust in regards to the outcome of our investigations.”

Ms McKnight concluded the letter with a warning to the claimant that if he did not attend the scheduled hearing it would proceed in his absence. Thus Ms McKnight answered both questions after a fashion.

33. Mr Daly responded by letter which was sent by fax on 30 March 2012 and contended that Ms McKnight had not answered his questions. Mr Daly very not unreasonably pointed out that the respondent had an input into the Multi Agency Meeting and that Ms McKnight’s statement postdated its findings. Mr Daly advised that he had written to the Northern Trust and asked it to reconsider the position and suggested to Ms McKnight that a reasonable employer would defer any action until this was done. Mr Daly asked Ms McKnight to confirm the respondent’s agreement to this or in the event of the respondent being determined to proceed with the hearing to provide an adequate Step 1 letter with full particulars and to include a copy of her investigation report and supporting documentation.

34. On 1 April 2012, the claimant wrote to Ms McKnight and drew attention to the unavailability of both his solicitor and trade union representative for the hearing as well as a recent violent assault upon the claimant. The claimant went on to state that he had been advised not to attend the hearing on his own. The claimant also complained about the respondent’s failure to particularize the allegations against him and pointed out that the same allegation was being put in different ways that he had not seen before and that new allegations were levelled that had not been raised before. The claimant also requested a copy of any investigation report and relevant papers in order to defend himself.

35. The respondent did not reply to the claimant’s letter of 1 April 2012. The claimant did not attend the hearing on 2 April 2012 and the hearing proceeded in his absence. The hearing was conducted by Ms Wendy Chambers. Ms McKnight acted as Minute Taker. Ms Chambers issued a detailed decision letter on 5 April 2012. The letter addressed each of the thirteen allegations in turn. Ms Chambers states clearly that she was satisfied that the incidents that form the basis of allegations 7, 9 and 10 did occur. She was also satisfied that allegation 13 (breach of trust) had been made out and it is implicit from what she says that allegation 12 (failure to attend investigation meetings) was made out. Having considered the individual allegations Ms Chambers then went on to look at the matter more broadly and indicates that given the sheer number of allegations and that they came from more than one young person and a parent, she had no alternative but to uphold all of the allegations. Ms Chambers does not express this particularly clearly but it is evident that in the absence of a reasonable explanation by the claimant for all the allegations or any acceptable mitigating circumstances, she was satisfied on the balance of probabilities that the incidents did in fact occur. On this basis Ms Chambers was satisfied that gross misconduct had been proven and having considered all of the alternatives she decided that the claimant should be summarily dismissed. Ms Chambers also stated that the outcome of the “Some Other Substantial Reason hearing” was dismissal with notice based on the outcome of the Sharing to Safeguard Meeting. Ms Chambers indicated that this was superseded by the gross misconduct ruling.

36. The claimant appealed against both decisions. In an email dated 18 April 2012 the claimant stated that the grounds of his appeal as – “A finding of guilt in the absence of evidence was perverse and unfair.”

37. The claimant attended the appeal hearings which took place on 26 April 2012. The claimant was accompanied by a Trade Union representative, Mr Jim Donnelly of the GMB. The hearing was conducted by the respondent’s Chief Operating Officer, Mrs Kelly Looker. The claimant submitted a detailed seven page typed submission in respect of each appeal. In the submission, the claimant contrasted the NISCC’s decision not to impose an Interim Suspension Order on him with the decisions reached by the Sharing to Safeguard Meeting, criticised the process followed by it, raised issues about a number of aspects of the minutes of the Sharing to Safeguard Meeting, drew attention to inaccuracies in the minutes and indicated that he might seek to have its decision overturned in the High Court.

38. Mrs Looker gave her decision in writing by letter of 16 May 2012. In relation to allegations 7, 9 and 10 Mrs Looker stated that she struggled to accept that there was sufficient evidence to substantiate that the claimant had committed these acts. Mrs Looker then went on to address the allegations globally and stated as follows:-

“What is clear to me is that given the number and volume of allegations which had been made against you over the preceding months on the balance of probabilities I believe that some of them may have been true. I cannot surmise from the evidence available which of the allegations are in fact true however I believe that there is sufficient evidence the final allegation of breach of trust and I believe that this element of the disciplinary is proven but I do not feel that it has been proven to such a degree to support the decision to terminate your employment.”

Having only upheld the allegation of breach of trust Mrs Looker overturned the decision to dismiss the claimant for gross misconduct and replaced it with a final written warning.

39. Mrs Looker then turned to the second appeal and upheld the decision to dismiss the claimant on the basis of the Sharing to Safeguard Meeting’s finding that the claimant posed a risk to children and stated as follows:

“…..I do believe that the decision reached by the Chair of the SOSR hearing was just, whilst I appreciate that you feel that the company let you down at the Sharing to Safeguard Meeting and indeed you have indicated that you believe we are using this meeting as an excuse to terminate your employment we cannot escape the fact that based on the decision reached at the Sharing to Safeguard meeting that they believe you pose a risk to children as such your employment with Keys cannot continue. I therefore must uphold the decision of the SOSR Chair and confirm that the outcome of the Some Other Substantial Reason appeal hearing was dismissal with notice.”

40. On 22 August 2012 the Preliminary Proceedings Committee of the NISCC issued its final decision pursuant to Paragraph 5 of Schedule 1 to the NISCC (Conduct) Rules 2007 which was that no further action should be taken. This decision reflected the NISCC’s view that it was not satisfied that there was admissible, substantial and reliable evidence to provide a real prospect of a finding of misconduct in relation to the complaint and that the Committee must be satisfied that the complaint can be sustained on a balance of probabilities. The decision then stated as follows:-

“The position of the Registrant’s employer appears to have been that, whilst there was no evidence for the complaints, equally there was no evidence to prove that they did not happen. They also appear to have concluded that there are so many allegations against the registrant that there are likely to be some which are true. That is not a proper evidential test and cannot form the basis of a finding of misconduct for the purposes of the 2007 Rules.”

This summary would appear to suggest that although the Committee was privy to the disciplinary decisions of Ms Chambers and Mrs Looker it did not see the minutes of the Sharing to Safeguard Committee.

41. As indicated in the letter of 2 December 2011 the matter was also referred to the ISA. On 5 September 2012 the ISA wrote to the claimant and informed him that having concluded its enquiries and carefully considered all the information received it decided that it was not appropriate to include the claimant on the Children’s Barred List or the Adult’s Barred List. Significantly the decision letter went on to explain that the ISA’s decision meant that the claimant would not be prevented from working and volunteering with vulnerable adults and children (by ISA), this did not overrule restrictions placed on him by other bodies and that ISA’s decision had no bearing on the respondent’s decision to dismiss him.

THE LAW

Substantive Unfairness

42. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

“130. - (1) 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 such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(ba) is retirement of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

(3) Where the employer has fulfilled the requirements of paragraph (1), 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 or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

43. In a dismissal for some other substantial reason the focus of the tribunal’s consideration must therefore be whether or not the employer acted reasonably in dismissing the employee on this basis. As with a misconduct case the tribunal must not substitute its view for that of the employer and as long as dismissal is within the range of reasonable responses the dismissal will be fair.

44. Where an employer dismisses an employee for some other substantial reason he must show that the reason is not whimsical or capricious and if he does so it is capable of being substantial. If, on the face of it, the reason could justify the dismissal then it will pass as a substantial reason. The employer must also show that the substantial reason justifies dismissal. (Harvey on Industrial Relations & Employment Law D1 [1851], [1894] and [1895]).

45. In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 (reaffirmed by the Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827) which includes (inter alia) that in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another and that 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. In this regard the tribunal is also assisted by the guidance given by the Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. Although these cases were all concerned with conduct or misconduct dismissals the correct approach in terms of the reasonableness of the dismissal applies equally to cases involving dismissal for some other substantial reason. Unusually in the present case the respondent was dealing with dismissal on both grounds.

46. The tribunal received submissions in relation to two cases involving so called dismissal at the behest of third parties. The first of these in chronological terms was Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329. In that case the Court of Appeal Sir John Donaldson MR gave the leading judgment and said (at pp 331-332)

“In deciding whether an employer acted reasonably or unreasonably, a very important factor, of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee’s service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account and they are all matters which affect the justice or injustice to the employee of being dismissed.”

47. In its amended response the respondent placed reliance on the decision of the Employment Appeal Tribunal in Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466. The claimant in that case was employed by the respondent to drive a minibus taking disabled children to school. The service was provided under a contract between the employer and South Tyneside Metropolitan Borough Council. The contract provided the Council with an absolute right to veto the employment of particular individuals in providing the service. The Council brought to the employer’s attention information it had received that the claimant had been involved in the sexual abuse of his two young nieces. The employer put the allegations to the claimant who said that they related to a period several years back; that he had done nothing wrong; and that the matter had been investigated by the police who decided not to prosecute. However, the South Tyneside Safeguarding Children Board convened an incident evaluation meeting which was attended by relevant professionals including social services and the police. The claimant’s general manager was also in attendance but the claimant was not asked to attend. The professionals agreed that abuse had taken place and that the claimant could no longer work with children. The claimant’s general manager wrote to the reviewing officer and tried unsuccessfully to persuade the Council not to veto the claimant’s employment. As there was no alternative work the employer dismissed the claimant. The claimant brought unfair dismissal proceedings against his employer. The employment tribunal held that it was clearly reasonable for the employer to dismiss the claimant as a result of third party pressure and that the employer had done all that it could reasonably be expected to do to assist the claimant and prevent him from losing his employment. The employment tribunal considered that the reason for dismissal came within “some other substantial reason” and dismissed the claim. The claimant appealed on the basis that the tribunal had erred by not explicitly considering whether the employer had taken account of the injustice to him. The appeal proceeded before the Employment Appeal Tribunal on the basis that the claimant had suffered at least a procedural injustice in that he had no chance to put his case to the Safeguarding Children Board and possibly a substantive injustice in that he denied the allegations of sexual abuse; he was a man of good character; he was never the subject of criminal proceedings arising from the allegations; and the allegations were of a historic nature.

The Employment Appeal Tribunal dismissed the appeal. Mr Justice Underhill (President) gave judgment as follows:-

“It must follow from the language of section 98(4) that if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee, but has failed, any eventual dismissal will be fair; the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer. That may seem a harsh conclusion; but of course it would be equally harsh for the employer to have to bear the consequences of the client’s behaviour; and Parliament has not chosen to create any kind of mechanism for imposing vicarious liability or third party responsibility for unfair dismissal.”

“According to Dobie, the employer does have to take account of the facts known to him at the time, whether there will be injustice to the employee and the extent of that injustice. Nonetheless, there will be cases where, however much the employer “takes into account” the injustice to the employee caused by the third party’s stance, he may still reasonably decide to dismiss. In a case where the client’s stance appears liable to cause injustice, the tribunal must consider with special care whether the employer has indeed done all that he could to avoid or mitigate that injustice, but Dobie does not hold that even where the employer has done all he could the dismissal will be unfair.”

“Moreover, Dobie does not establish that a tribunal must explicitly refer to, and expressly put in the balance, the injustice to the employee. While it is certainly good practice for a tribunal explicitly to direct itself by reference to Dobie, failure to do so need not be fatal. In some cases it may be sufficiently apparent that the tribunal had indeed taken the injustice to the employee fully into account. In many cases, it will be at the heart of the case and could not realistically be overlooked.”

“In the present case, the tribunal had plainly been very conscious that the claimant was being dismissed because of concerns based on allegations of misconduct which he had no chance to rebut and for which he had never been charged, but found that the employer had done all it could reasonably be expected to do to assist the claimant and prevent him losing his employment. That conclusion addressed the right question and was an answer that was open to it on the facts, if not inevitable.”

In the discussion section of his judgment, Mr Justice Underhill also made the following obiter comment:-

“If it is indeed the case that a man may be judged unfit to work with children, and can lose his job in consequence, because of a conclusion reached on evidence which he does not see, by people whom he does not know and has no chance to address, applying criteria which he has no chance to challenge and without any effective appeal, that is a deplorable state of affairs.”

48. In Greenwood v Whiteghyll Plastics Ltd the Employment Appeal Tribunal regarded it as significant that there was no record in the disciplinary proceedings or elsewhere that the respondent had given consideration to the very important factor of whether there was any injustice to the employee. On this basis the Employment Appeal Tribunal allowed the employee’s appeal although it did allude to the possibility that this would have made no difference.

49. The most recent jurisprudence on this topic is the decision of the English Court of Appeal in Michael Leach v OFCOM [2012] ICR 1269. It should be noted that this case was previously known as A v B prior to the appeal to the Court of Appeal from the Employment Appeal Tribunal. The Court of Appeal upheld the Employment Appeal Tribunal’s decision and endorsed the comments made by Mr Justice Underhill in his judgment. The relevant passages in the Court of Appeal’s decision are contained in Lord Justice Mummery’s judgment and are set out in full below:

”37. In a number of passages in the "discussion" section of the excellent judgment prepared by Underhill J the EAT identified their concerns about breakdown in trust as the reason given by the Respondent for dismissing the Claimant. It did not find "the terminology of 'trust and confidence' particularly helpful" in pleading the Respondent's case: see [25]. In cases of acting on untested information (or where the employee has been acquitted on the very facts relied on) the EAT said:-

"27. …It sticks in the throat that an employee may lose his job, or perhaps in practice any chance of obtaining further employment, on the basis of allegations which he has had no opportunity to challenge in any court of law-or may indeed have successfully challenged. On the other hand, it has to be recognised that there are cases where it is necessary for employers to be warned of facts which indicate that an employee (or potential employee) is a risk to children, even in the absence of any conviction. The courts have had to grapple in a number of cases with how the balance should be struck…"

"28. In our judgment an employer who receives information from CAIC or a similar body, under an official disclosure regime, that an employee poses a risk to children must, in principle and subject to certain safeguards, be entitled to treat that information as reliable….In our view it is plain that an employer in such a case cannot be expected to carry out his own independent investigation in order to test the reliability of the information provided by a responsible public authority. He will typically have neither the expertise nor the resources to do so."

"33. The question thus is whether the risk of such reputational damage was a sufficient justification for the dismissal of an employee against whom nothing had in fact been proved. We do not find that question particularly comfortable. In a case of this kind, not only is it not established that the employee is in fact a danger to children, but, even if he is, the dismissal will not significantly reduce the risk of his offending (since opportunities for offending are not afforded by the employee's job), but is concerned solely with saving the employer's reputation. That is much less evidently justifiable. Nevertheless, after careful reflection, we have come to the conclusion that, in the circumstances of the present case, the Tribunal was entitled to regard the dismissal of the Claimant as justified. It was in our view legitimate for the Respondent, in its particular position, to be jealous of its public reputation. It was entitled to take the view that to continue to employ, in the position in question, a person who it had been officially notified was a child sex offender and a continuing risk to children, would-if he were subsequently exposed (which it was plainly reasonable to anticipate)-severely shake public confidence in it. We are acutely aware, as was the Tribunal, that to justify the Claimant's dismissal on the basis of reputational risk in the absence of any established misconduct may involve a grave injustice to him. But it is essential to bear in mind that under s.98 the central question is what it was reasonable for the employer, in the relevant circumstances to do. If the Claimant is in fact innocent, the injustice has been caused not by the employer but by those who have falsely accused him and by CAIC which has given credence to those accusations …."

"48. We have found this a worrying case. It is not our role, and we are in no position, to make a judgment as to whether the Claimant has committed offences against children. The Metropolitan Police clearly believe he has, and it would, or in any event, should, not have formed that belief without reliable information. But it is only fair to record that the Claimant has been (in effect) acquitted in the only proceedings brought against him; and he has….produced apparently powerful statements in support of his innocence. If he is indeed innocent, he has suffered a very grave injustice. But the risk of injustice is inherent in a system where the police are permitted to make apparently authoritative "disclosures" of the kind made here, unsupported by any finding of a court; and it will no doubt be said that the risk is the price that has to be paid for achieving the protection of children. In any event, as we have already emphasised, the question for the Employment Tribunal was not, as such, whether the Claimant has suffered an injustice but whether the conduct of the respondent towards him was fair. If he was treated unfairly by CAIC, his remedy is against them."

Lord Justice Mummery stated he could not improve on the excellent analysis of the overall position made by the EAT and that as he agreed totally with their judgment and, in particular, the key passages cited above, he confined his contribution to the debate to several salient points which again we find helpful to set out in full below:-

“52. First, the question for the ET was whether the Respondent's reason for dismissal of the Claimant was "some other substantial reason" within the meaning of s.98(1)(b) of the 1996 Act. Was it a reason which a reasonable employer could rely on to justify a dismissal as fair for the purposes of s.98(4)? That is essentially a question for the ET's assessment on the facts found in the particular case. Its decision can only be appealed if a question of law arises from it. The Claimant is not entitled to re-argue the facts of the case in the hope that he can persuade this court to make a different assessment more favourable to him.

53. Secondly, the ET was entitled to conclude, on the facts of the case as found by it, that the reason for the Claimant's dismissal was a "substantial reason" within s.98(1)(b). The mutual duty of trust and confidence, as developed in the case law of recent years, is an obligation at the heart of the employment relationship. I would not wish to say anything to diminish its significance. It should, however, be said that it is not a convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate. The circumstances of dismissal differ from case to case. In order to decide the reason for dismissal and whether it is substantial and sufficient to justify dismissal the ET has to examine all the relevant circumstances. That is what the ET did with regard to the nature of the Respondent's organisation, the Claimant's role in it, the nature and source of the allegations and the efforts made by the Respondent to obtain clarification and confirmation, the responses of the Claimant, and what alternative courses of action were reasonably open to the Respondent. The ET could have reasoned its decision on this point in more detail or at greater length, but I do not think that the decision is flawed for want of reasons, or by an error of law or by plain perversity.

54. Thirdly, because each case of fair or unfair dismissal depends almost entirely on its own particular facts, the authorities cited by the Claimant are rather unhelpful and certainly not conclusive of this case. The Claimant specifically relied on the following cases, saying that the EAT had drawn wrong conclusions from them, but, in my judgment, the authorities are distinguishable from this case in the respects indicated: P.v Nottinghamshire CC [1992] ICR 706 (inadequate investigation by employer of employee accused of indecent assault on his daughter and no consideration was given to alternative employment); Securicor Guarding Ltd v. R [1994] ICR 633 (no fair investigation by employer of allegedly hostile attitude of a customer to a security guard charged with sex offences against children and no investigation of alternatives to dismissal); and A v. B [2003] IRLR 405 (allegation of inappropriate behaviour by residential social worker with under-age girl was not fairly investigated by employer).”

Procedural Fairness

50. When an employer is considering dismissing an employee it must follow the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. In the present case the standard procedure applies which is as follows:-

“Step 1: statement of grounds for action and invitation to meeting.

1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless –

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3. - (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision.”

Submissions

51. On behalf of the respondent, Mr Redman submitted that the respondent found itself between a rock and a hard place. It had a clear duty to children in care and statutory duties that could not be ignored. The Sharing to Safeguard Meeting was faced with lots of complaints against the claimant and it concluded rightly or wrongly that the claimant posed a risk to children and in these circumstances the respondent decided that it was necessary to dismiss the claimant for some other substantial reason. Mr Redman criticized the claimant for not attending meetings and drew attention to the different decisions of Ms Chambers and Mrs Looker. Mr Redman did not press the argument that the claimant contributed to his own dismissal as the most that could be said was that the claimant had placed himself in a position where he laid himself open to complaints.

52. On behalf of the claimant, Mr Daly submitted that there was no evidence before the tribunal in relation to the respondent’s statutory duties or of breach of the duty of care. Mr Daly also drew attention to the obiter comments in Dobie and that injustice caused to the claimant. Mr Daly conceded that the basic statutory dismissal procedure was followed by the respondent and on the basis of Polkey any failings would not have made any difference to the outcome.

53. Mrs Looker did not state in her letter of dismissal or in her evidence to the tribunal that dismissal was the only option or was anything to do with a duty of care to the children. Mrs Looker did not state that she had a genuine fear that children would be removed. Nor did Mrs Looker refer to the cost of suspending the claimant for an extended period of time or that the two statutory bodies had not finalized their decisions. Rather she based her decision entirely on the Safeguarding Committee’s decision that the claimant posed a risk to children and that the Trusts would take children away. Mr Daly drew attention to Mrs Looker’s evidence and submitted that there was not one shred of evidence that supported her contention that she was sure that Trusts would take children away. Mrs Looker didn’t speak to either Trust and received no direction from them. Mr Daly submitted that the tribunal should look at the intent of the respondent as a whole and consider whether it had a genuine fear that if the Sharing to Safeguard Meeting’s recommendation was ignored the Trusts would start to remove children and the knock on effect on employment coupled with the question of whether the claimant could go back to work and Mrs Looker’s evidence that the respondent could not justify keeping the claimant in the business.

54. Mr Daly also placed reliance on NISCC’s thorough investigation of the complaints finding that there was not substantial and reliable evidence to provide a real prospect of a finding of misconduct and its criticism of the respondent’s approach to the evidence. On this basis Mr Daly urged the tribunal to find that there was not a proper evidential basis to justify the termination of the claimant’s employment. Mr Daly also drew attention to the occupational hazard of a false allegations being made by children in institutions. Mr Daly also pointed out that the PPS had directed no prosecution. Mr Daly very properly accepted that a multi disciplinary approach to child protection was clearly laudable but pointed out that the Sharing to Safeguard Meeting did not have statutory powers.

55. Mr Daly submitted that Mrs Looker made her decision on the fact that the Sharing to Safeguard Meeting made this finding and did not look at the basis of the finding and decide whether it was safe to rely upon it and it was the respondent’s own finding as evidenced by Ms McKnight’s statement that there was no evidence to support the allegations. Mr Daly submitted that having played a prominent role in the Sharing to Safeguard Meeting and let the claimant down by providing misinformation to it. Having taken Ms McKnight’s statement it was unreasonable for the respondent not to go back to the Sharing to Safeguard Meeting and update it in October 2011 and subsequently when specifically requested to do so by Mr Daly in March 2012. Instead the respondent chose to ignore all of that and proceed on the basis of the outdated Sharing to Safeguard Meeting’s decision. The respondent also ought to have gone back to the Sharing to Safeguard Meeting after the finding of the NISCC as any reasonable employer would have done. Mr Daly invited the tribunal to draw an inference that the respondent decided to get rid of the claimant and that it was going to use the Sharing to Safeguard Meeting in order to do so. Mr Daly also suggested that that Mrs Looker took the decision on her own. At one point Mr Daly sought to reactivate procedural fairness issues on the basis that the step 1 letter was deficient in that the manner in which it set out the allegations did not allow the claimant to properly defend himself and that it was therefore open to the tribunal to find that there was a breach of the statutory procedures. However, he conceded that this was not his best point and that ultimately he was content to leave this issue to the tribunal to determine. Mr Daly also submitted that the respondent did not seek to engage with the employee and his representative as it had already decided what was happening. Mr Daly refuted the suggestion that the claimant had contributed to his dismissal by putting himself in a position that he was open to complaints and described this suggestion as outrageous.

56. Mr Daly also drew attention to the size and resources of the respondent organisation and pointed out that the respondent was not a small employer. It had its own Human Resources Director and it took legal advice about its decision to dismiss the claimant and therefore should have known better.

57. Mr Daly submitted that this was not a case of a third party putting pressure on an employer to dismiss an employee and therefore the Henderson case could be distinguished but at the same time contended that a reasonable employer would have followed the Henderson principles by doing everything possible to avoid or mitigate any injustice. The respondent made no attempt to do so here but rather deliberately created that injustice. The claimant also suffered a procedural injustice in not being allowed to put his case to the Sharing to Safeguard Meeting. Mr Daly also drew attention to the references in Henderson to Scott Packing & Warehousing Co Ltd v Paterson [1978] IRLR 166 and Grootcon (UK) Ltd v Keld [1984]IRLR 302. Mr Daly relied strongly in Sir John Donaldson’s comments in Dobie that a very important factor is whether or not there would be injustice and the difficulty of securing employment and also whether the tribunal has looked at injustice (paragraph 23). Mr Daly also fairly pointed out that in Henderson the employer didn’t want to get rid of the employee and did everything possible to talk the client out of the decision. The respondent should have looked at the injustice issue. It knew that there was no evidence to substantiate the allegations and it was part and parcel of the Sharing to Safeguard Meeting. Also, Mrs Looker relied on a redacted version with the references to previous false allegations blanked out.

58. There was no suggestion that the Trust had directed the respondent to dismiss the claimant. Mr Daly contended that the respondent had both predetermined the matter and had failed to seek to mitigate the decision. In particular the respondent had not taken any steps to challenge the finding of the Sharing to Safeguard Meeting that the claimant posed a risk to children. Mr Daly wrote to the respondent and asked for this to be done and although he received a reply to his letter this point was not addressed.

Further Written Submissions

59. The Tribunal drew the parties’ attention to Leach v OFCOM [2012] ICR 1269 which we have already mentioned in our summary of the relevant law and invited them to submit further written submissions in relation to that case. Mr Redman responded briefly by email and Mr Daly provided an additional written submission. We are grateful to both for their co-operation with the tribunal and we have taken their submissions fully into account in reaching our decision.

Discussion

60. Although the claimant and his solicitor suggested in correspondence that the procedure adopted at particular junctures was unfair the claimant’s case as presented to the tribunal focused on substantive unfairness. In any event the concept of substantive unfairness embraces procedural aspects to a degree and in particular the argument which is at the core of the claimant’s case namely whether the respondent addressed its mind to the question of whether any injustice was done to the claimant. There is no direct evidence that the respondent was alive to this issue but this is an unusual case in that the impetus for the Sharing to Safeguard Meeting’s decision came from the respondent.

61. We were told by Mr Daly that the Sharing to Safeguard Meeting has recently reviewed the case but that its decision remains the same and that both decisions are to be challenged by judicial review. Be that as it may we have to consider the reasonableness or otherwise of the decision to dismiss the claimant on the basis of the information that was available to the respondent when it made its decision. The fact that other bodies reached different conclusions does not mean that the Sharing to Safeguard Meeting’s decisions are necessarily flawed particularly as these bodies did not consider the same material as the Sharing to Safeguard Meeting and on at least one occasion had the benefit of additional evidence from other witnesses. Furthermore, the statement by Ms McKnight that the allegations were unsubstantiated was not a new stance as far as the respondent was concerned. In our view the respondent was quite entitled to bring the matter to the attention of the Sharing to Safeguard Meeting and thereafter accept its recommendation that the claimant posed a risk to children.

62. In relation to the caselaw that we have referred to above, we consider that there are dangers in adopting phraseology used in one case with different facts and seeking to apply this to a particular set of facts under consideration as if one is applying a statute. No two cases have identical facts and the cornerstone of our decision must be the words of the statute and thereby to determine whether or not the employer acted reasonably in dismissing the employee. We are reinforced by the Court of Appeal’s judgment in Dobie which in seeking to articulate supposed instances or injustice in reality did no more than allude to the normal everyday considerations that inform judging the reasonableness of a decision to dismiss. In the present case one could not reasonably expect the respondent to seek to persuade the Sharing to Safeguard Meeting not to rule that the claimant should have no contact with children in circumstances where the respondent was the prime mover in bringing such concerns to its attention. The respondent clearly had concerns about the claimant but did not have sufficient evidence to warrant dismissing him for gross misconduct. In these circumstances the respondent cannot be criticised for bringing the matter to the Sharing to Safeguard Meeting’s attention. It is also clear that the respondent had no other work that it could engage the claimant in with the result that mitigation of the nature envisaged in Dobie was not possible either.

63. Notwithstanding Mr Daly’s submission that this is not a case of an employer dismissing an employee as a result of pressure from a third party the caselaw in this sphere is of assistance in our analysis of the issues. The respondent employer was a willing participant in the process that led to the third party making its decision and in reality having gone down this route the respondent had little choice but to dismiss the claimant once the Sharing to Safeguard Meeting had communicated its decision that the claimant posed a risk to children. Having presented evidence that both brought about and supported this conclusion it would be bizarre to expect it to seek to persuade the Sharing to Safeguard Meeting to change its mind.

64. In the present case, the respondent investigated a number of complaints against the claimant and found that none of them could be substantiated. Notwithstanding this, the respondent saw fit to draw these unsubstantiated complaints to the attention of the Sharing to Safeguard Meeting. The respondent clearly entertained real concerns about the claimant’s behavior and in our view it would have been a dereliction of its duty to keep these concerns to itself. The act of bringing the matter to the Sharing to Safeguard Meeting’s attention exposed the concerns to a broad range of experienced professionals who, having considered the matter carefully and we have no reason to doubt conscientiously, concluded that the claimant posed a risk to children. As a result of this conclusion the respondent was then faced with a situation where it employed a person on its books who had been deemed unfit to work with children. In addition, the Northern Trust provided children and young persons for the respondent to look after and it could not be expected to continue to entrust them to a body that employed a person who was unfit to work with children. As there was no other employment available for the claimant who had settled in Northern Ireland it was in our view entirely within its rights to dismiss the claimant for some other substantial reason.

65. There is a considerable degree of overlap between unfairness and injustice and we would be slow to criticise a disciplinary decision maker for not specifically alluding to injustice in its decision. It is even more unrealistic in the present case as the respondent was not faced with a decision by an external body that it did not agree with but rather one that it was a major contributor to and in these circumstances one could not expect the respondent to seek simultaneously to persuade that body that it should not make a finding that the claimant posed a risk to children.

66. In the present case the claimant was fully aware of the allegations against him and challenged them on several occasions with the respondent. True it is that he did not have the opportunity to appear before the Sharing to Safeguard Meeting and give it his account. This may or may not have made any difference to the outcome but it is no part of our role to judge the fairness or otherwise of procedures adopted by third parties. We are only charged with determining whether the claimant was unfairly dismissed by his employer.

67. As Mummery LJ observed in Leach v OFCOM each case depends on its facts. We consider that there is a danger in using concepts such as injustice as in Dobie that one loses sight of the central issue in all unfair dismissal cases namely whether the employer acted reasonably in dismissing the employee. As Mummery LJ puts it the question for a tribunal is not whether a claimant has suffered an injustice but whether the conduct of the respondent towards him was fair. In addition, the examples of injustice given in Dobie are in many cases indistinguishable from the factors that a tribunal will have to pay regard to in determining whether the dismissal was reasonable.

Conclusions

68. We consider that dismissals for some other substantial reason require a two stage approach as endorsed by the Court of Appeal in Leach v OFCOM. The first issue for us is therefore whether the respondent's reason for dismissal of the claimant was "some other substantial reason" within the meaning of Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996. We are satisfied that the respondent has shown that the reason is a substantial reason and is not whimsical or capricious and could justify the dismissal of the claimant.

69. Secondly, we conclude, on the facts of the case as found by us the respondent has shown that the substantial reason justifies dismissal. In so finding we are mindful that the tribunal must not substitute its view for that of the employer and a dismissal that is within the range of reasonable responses the dismissal will normally be regarded as fair. We are satisfied that the reason for dismissal in the present case was both within the range of reasonable responses and fair. Although there is no record in the disciplinary proceedings that the respondent gave consideration to the question of whether there was any injustice to the employee, we do not regard this as a decisive factor in favour of the claimant having regard to both the specific factual circumstances and the recent authoritive statement of the law in Leach v OFCOM. We also appreciate that this is a difficult issue for both employers and employees to address in the context of disciplinary proceedings. It remains open to the claimant to challenge the Sharing to Safeguard Meeting’s decision by judicial review, if so advised, but even if he does so successfully this would not impact on the employment decision taken by the respondent at the material time.

70. We have also given careful consideration to the procedural fairness issues as there was some suggestion by Mr Daly that this was not accorded to the claimant. We are satisfied that the basic 3 step statutory procedure was complied with and that no other procedural unfairness arises. While we have a degree of sympathy with the claimant we are not persuaded that his dismissal was unfair and therefore the claim must be dismissed.

Chairman:

Date and place of hearing: 19-21 December 2012, Belfast.

Date decision recorded in register and issued to parties: