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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kerr v Amey Services Limited [2013] NIIT 01445_12IT (25 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1445_12IT.html
Cite as: [2013] NIIT 01445_12IT, [2013] NIIT 1445_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1445/12

CLAIMANT: David Kerr

RESPONDENT: Amey Services Limited

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed and the claimant’s claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mrs M Ferguson

Mrs E May

Appearances:

The claimant was self- represented.

The respondent was represented by Mr Brian McKee, Barrister-at-Law, instructed by C & J Black Solicitors.

1. The claimant complained in his claim that he was unfairly dismissed for gross misconduct following a charge of falsifying a road space booking permit required for training purposes overnight on the M1 motorway; that the charge of falsification also lies within the category of misconduct which can incur a final written warning, however before investigation the offence was judged to fall into the category of gross misconduct; company procedures were breached and so the investigatory and disciplinary procedures and their outcomes were predisposed against him and that despite his previous unblemished record and mitigating circumstances dismissal was the only sanction considered, that it was too harsh and fell outside the band of reasonable responses.

2. The respondent resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for gross misconduct; that on investigation the claimant had admitted falsifying the permit; that the claimant was invited to a disciplinary meeting and informed that the allegation could be deemed as constituting gross misconduct and if proven he could be summarily dismissed; that his representations were fully considered prior to the decision to dismiss; his grounds of appeal were fully considered prior to the dismissal decision being upheld on appeal and that the decision to dismiss was fair and reasonable in all the circumstances of the case.

3. At hearing it was put by Mr McKee that the act of misconduct was not disputed by the claimant hence the investigation as to the fact of misconduct was not relevant and the issue for the tribunal was when deciding to dismiss whether the decision was fair and reasonable and fell within the band of reasonable responses. The claimant however stated that he did not consider that the investigation carried out had been full and frank in accordance with procedures for managers and was not open and honest to him because the investigation of the key client was just a telephone call to him and that he was misled during the investigation meeting by being told that the key client still had to be spoken to whereas he had already been spoken to the day previously. The claimant referred to the respondent failing to give him adequate notice of the disciplinary hearing but acknowledged that this was rectified by the postponement of the hearing when he brought this to the respondent’s attention.

ISSUES ON LIABILITY

4. In determining the question whether the claimant was unfairly dismissed by the respondent the issue before the tribunal was:-

Did the respondent act reasonably in treating the conduct of the claimant as a sufficient reason for the dismissal?

EVIDENCE

5. The tribunal considered the claim, response, agreed bundle of documents and additional loose documents provided by the parties in the course of the hearing. Oral evidence was heard from Mr Gregory Price account manager on the respondent’s NIDBFO contract and the claimant’s direct line manager, Mr Malcolm Shanks the respondent’s principal operations manager, Michelle Bloor, the respondent’s office manager, Mr Wayne Donaldson Human Resources business partner for the respondent, and from the claimant.

FINDINGS OF FACT RELEVANT TO LIABILITY

6. The respondent is one of a group of companies which includes Amey Lagan Roads Limited and Lagan Roads Limited.

7. Amey Lagan Roads Ltd (referred to by the respondent as the ‘DBFO Co’) holds a thirty year term contract with the Department for Regional Development, Road Service, in relation to sections of motorway and trunk road in Northern Ireland. Work under the contract is jointly delivered by Lagan Roads Ltd and the respondent, the respondent deals with maintenance works known as the NIDBFO package 2 contract, covering all aspects of cyclical activities including grass cutting, roads maintenance, weed cutting, sweeping, gritting, cleaning signs, replacing signs and barriers.

8. The claimant commenced employment with the respondent on 17 October 2007 following a letter of offer on 30 August 2007 for the post of works manager on the respondent’s NIDBFO package 2 contract based primarily at the respondent’s depot at Lurgan.

9. The respondent employed approximately twenty operatives and fifteen office based staff made up of inspectors, engineers, supervisors and administrative staff.
Sub-contractors were engaged when required for more specialized work such as pavement and barrier repairs.

10. In the course of his employment the claimant was provided with the respondent’s disciplinary procedure which set out at pages 2 and 3 therein:-

‘Misconduct/Negligence

Breaches of contractual terms or company rules or policies will be regarded as misconduct or negligence. Such offences may result in disciplinary action being taken. Examples of misconduct/negligence include, but are not confined to the following ...

· Falsification or inaccurate statements in official documentation.’

‘Gross Misconduct/ Negligence

Serious breaches of contractual terms or company rules or policies will be regarded as gross misconduct or negligence. Examples of gross misconduct / negligence include, but are not confined to the following …

· Falsification of records, time sheets, expenses or reports etc.

…

If an employee is accused of an act of gross misconduct or negligence, they may be suspended from work on full pay for as short a time as possible, and in any event for no longer than is necessary to investigate the allegations. If, on completion of the investigation and the full disciplinary procedure, the organisation is satisfied that gross misconduct or negligence has occurred, the result will normally be summary dismissal, i.e. dismissal without notice, or payment in lieu of notice.’

11. The contract provided for a permit procedure whereby Road Service were to be notified of any lane closures on the roads network prior to maintenance works being carried out. In practice this was undertaken by the respondent. The permit procedure was to allow the Road Service section office for the affected area to manage lane availability, co-ordinate road works and inform public road users where required. Financial penalties applied for closure of roads at certain times of the day. Under the procedure the respondent was required to complete and submit an application for a traffic control permit to the Road Service PPP unit, the department set up to manage the DBFO contracts. Whilst the permit application provided that Roads Service required a minimum of two weeks notice in order to process the closure in accordance with the relevant legislation, in practice applications were often made outside this period.

12. After referral by the PPP unit to the relevant Road Service section office if the application was approved Road Service would issue a traffic control permit containing a description of the location, commencement and finish times and type of work the authorized closure was for, the contractor’s details, a Road Service contact name and the name of the Road Service ‘authorised officer’. If an application was unsuccessful it was usually declined by telephone and no formal paperwork was issued.

13. In an interview in 2011 for the Account Manager position within the contract the claimant was asked by Claire Easy-Muirehead of One HR, the respondent’s human resources business partner, why he had not attended a training session and did he know that this had cost the contract a £500.00 fine. The claimant tried to explain that he had not attended the course on instruction of the account manager.

14. During 2011 the respondent incurred penalty points for the first time under the contract; part of the cause was identified as the respondent’s lack of sufficient trained operatives to carry out mobile lane closures. To address the arrangements were made to train additional staff on dates in February, March, April and May 2012 to ensure the respondent had enough trained operatives to operate two mobile traffic management teams in time for the commencement of early grass cutting and weed spraying works. The claimant in January 2012 asked Mr Neil McGuigan to arrange training. The first training session took place in February 2012.

15. On 16 February 2012 Mr McGuigan e-mailed Mr Scott MacDonald (construction works manager), training dates for March and the lane closures he would like and sent a reminder on 19 March 2012, in respect of which Mr MacDonald e-mailed Mr Barry Spiers and Mr Raymond Glass of Road Service at 9.55 am on 20 March 2012 requesting three appropriate traffic control permits including one for the ‘Western Division M1 Junction 12 to Start of A4 on 27 March to 30 March for 12/C training’.

16. At 9.49 pm on 20 March 2012 Mr Gareth Lindsay e-mailed Mr MacDonald having noticed that there were to be full closures for structural repairs between junctions 12-14 and queried whether full closures for structural repairs between junctions
12-13 could be utilised for training or whether the training needed to be in live traffic to make it realistic so if possible that permit requests could be cancelled with as much notice as possible.

17. On 26 March 2012 one of the three permit requests relating to the Western Division Start of A4 to Ballygawley roundabout on 27 March to 29 March for 12/c training was approved and a traffic control permit was issued.

18. On 28 March 2012 at 6.12 am Mr Stephen Black (assistant site manager, Lurgan) in his e-mail night shift report sent to Mr MacDonald, the claimant, Mr Brian Root, Mr Eoin Kelly, Mr Nicholas Russell (project manager, highways, Lurgan) and Mr Douglas Hill (network manager, Lurgan) confirmed that for the training for 12C supervisors, ‘the trainer has requested a permit on the M1 to carry out the 12C training, he made it strongly aware that the total closure was not acceptable especially with the nature of the works the bridge guys were performing’. The claimant was out of the office that morning in connection with other work matters and Mr MacDonald was at a dentist’s appointment. The claimant returned to the office at approximately 2.00 pm and in the absence of there being a permit in place for the planned training that evening and his belief as to the implications of losing the training slot and knock on effect on the cyclic maintenance programme he felt extremely pressurized to ensure that the training could proceed as planned that night. The claimant estimated the cost of the training not proceeding could be in the region of £5,000.00. The claimant tried to telephone Mr Barry Spiers at Road Service, but his telephone rang out. At 2.46 pm just as the claimant had instead telephoned Mr Raymond Glass (Mr Spier’s supervisor) Mr Spiers returned a call to the claimant so the claimant cut his call to Mr Glass and instead spoke to Mr Spiers.

19. Following his call with Mr Spiers the claimant took an old traffic control permit and on the respondent’s computer system used it to create a new document headed, ‘Roads Service Permit Number 12-CN_49 Road Service – Southern Division Traffic Control Permit. To ensure the safety of site personnel and the public, notice is hereby given that the Department for Regional Development has approved a request to temporarily restrict traffic movements on: … ’and provided for a closure of two nights duration operating overnight only on the M1 Eastbound Lane 1 and 2 alternating, from Jet 12 to Jet 9 commencing Wednesday 28 March 2012 at 23:00 hours to Friday 30 March 2012 at 06:00 hours, that the closure was required for 12C mobile training and stated the Roads Services contact as Barry Spiers and, ‘Authorised Officer: Ciaran McKenna, Network Traffic Manager’. The claimant then provided a copy of the permit (hereafter referred to as No.49) created by him to Mr Black to pass on to the trainer and filed the original.

20. On 3 April 2012 Mr Hill was preparing an availability summary sheet for March and reconciling documents including those in the traffic control permit folder. Mr Hill came across permit No.49 and had difficulty reconciling it so he spoke to Mr Spiers to ask what the permit was issued for, Mr Spiers indicated that he thought that
12-CN-48 was the last permit issued by the Department and agreed to check and confirm. At 3.13 pm on 3 April 2012 Mr Spiers sent Mr Hill an e-mail in respect of permit No.49 stating, ‘Douglas I am not aware of the above TCP being issued.’

21. At 7:22 pm on 3 April 2012 Mr Russell e-mailed Mr Hill and Mr Price confirming his availability for a meeting on 4 April 2012 and set out ‘a quick snapshot’ of his issues which included, ‘forgery of permits-This disgusts me and I will not let this one go like I did the previous. How anyone can let this go on and nothing be done about it is beyond me. The implications of this, had anything happened are that Amey would be uninsured and would be dragged through courts and people would be sent to jail. Greg as the account manager you would have been one of them! This does not even touch on the reputation of Amey in Northern Ireland or in general Amey.’

22. On 4 April 2012 Mr Hill prepared a statement relating to his discovery of permit No. 49 and recommended that a full investigation be carried out into the circumstances around its creation and resulting works on the network and expressed concerns that he deemed the act, ‘serious enough to have our contract terminated. If this is a fraudulent document it could affect our ability to tender for new work and have devastating consequences reputationally for our existing Roads Services relationship. There are also Health and Safety implications if we are carrying out work which has not been properly notified to the roads service and the travelling public using our road.’

23. At 9:26 am on 4 April 2012 Mr Hill sent an e-mail to the team members who normally applied for permits, Mr Lindsay, Mr Russell and Mr MacDonald and copied the e-mail to Mr Price stating, ‘All, Does anyone know the details behind this permit? Barry is unaware of this being issued. I need this resolved this morning as it impacts on the monthly report summary.’ At 9:35 am Mr MacDonald replied, ‘Doug where was this permit for? I don’t recall this and have not received a permit with this number back from RS.’

24. At 17:45 on 4 April 2012 Mr Price spoke with the claimant about being made aware of the falsification of a record, the roads permit No.49 by Mr Hill, the claimant confirmed that the permit was fabricated by him to give to the 12C mobile traffic management trainer on 28 March 2012. Mr Price’s typed meeting note records, ‘Prior to that a phone call was made to Barry Spiers (Roads Service PPP Unit) requesting permission to operate a mobile closure on the M1 E/B lane 1 and 2 alternating. As Barry was on Temple Golf Course he stated he could not provide confirmation to carry out the work but was happy for the work to proceed at the time requested.

Barry Spiers was unaware of the production of the permit by David.

David stated that he did not want to allow training to fail due to a missing piece of paper work.

I stated that fabricating a Client document was a serious issue.’

Mr Prices’ handwritten meeting note concluded, ‘I said I would inform Doug Hill of David’s version of events i.e. that Barry knew about the work’, this sentence was not however included in the typed note.

25. One HR is a group of advisors used to provide support and advice to managers within Amey on HR matters to ensure that managers go through correct processes thoroughly. Whilst actual decision making is a matter for the manager involved, One HR must be satisfied that correct processes were adhered to for authorisation of the manager’s decision to be given.

26. On 5 April 2012 Mr Price contacted Ms Rebecca Swiffen, a One HR advisor in relation to the claimant’s admission that he had falsified a road permit document, usually produced by the client, to enable some training to be carried out. One HR’s case history notes record under background information provided that, ‘David’s actions could have serious repercussions of bringing the Company into disrepute, should the Client find out’, also that ‘the Client is not so far aware of the incident’, and, ‘You view David’s actions as gross misconduct and require guidance on next steps’.

27. On 9 April 2012 Mr Price met with and suspended the claimant in line with the respondent’s disciplinary procedure on full pay whilst an investigation was conducted into the allegations over falsification of a record, permit No. 49 and arranged for him to attend an investigatory meeting on 12 April 2012. The suspension was confirmed by a letter the same day which stated, ‘following your conversation of Monday 9 April with Greg Price, I confirm that you are suspended on full pay pending an investigation into the following allegation made against you: falsification of a record (Permit 12 CN 049)’ and the claimant was advised that the allegation could be deemed as constituting gross misconduct and if proven he could be summarily dismissed.

28. On 11 April 2012 Mr Price called Mr Spiers by telephone. He recorded in his handwritten note of the call,

‘I explained that I wanted to ask Barry about his discussion with David Kerr on 28 March 2012 (by phone) where David requested a permit to carry out TM training on the M1.

Barry confirmed that permits had been requested by Scott MacDonald on 20/03/12

1 No. Permit was granted

2 No. Permits were declined due to other work on the network

Phone call on the 28/3/12

BS confirmed with David that previous permits had been refused. David requested permit for the other direction: BS stated he could not provide this permit. DK asked for e-mail. BS stated he could not provide.

BS stated he did not specifically say the work could not happen but did state that he could not provide a permit.

This is a true and accurate record of phone call with Barry Spiers’.

29. On 12 April 2012 the claimant attended an investigatory meeting with Mr Price; Ms Bloor was present as a note taker. The respondent’s meeting notes are agreed and accepted as accurate. The claimant confirmed at the meeting that he produced the permit which would normally be produced by Roads Service and outlined the events leading up to the production of the permit on 28 March 2012 and raised mitigating circumstances, in particular;

· the previous year’s failures and penalty points,

· the need for more trained operatives and fast track approach to training being taken to ensure two mobile closure teams in time for the cyclic works programme,

· the risk of the training not going ahead, that the delay to completion of the training could potentially be one month and subsequent delay/effect on cyclic works and risk of penalty points was such that he felt pressured to make sure that the training went ahead.

The claimant indicated that if original permit requests had been made on 16 February 2012 then the training closures would have been in place before structures work re-commenced. The claimant stated that in his call with Mr Spiers that Mr Spiers had confirmed the original permit had been declined due to structures work/full closures, the claimant could not find any record of Road Service declining the other two permits, he suggested using the M1 on the other side, that Mr Spiers stated that this had not been requested at the time of the refusal of the permits and if this had been requested earlier this could have been granted. Mr Spiers confirmed that was not requested. The claimant asked Mr Spiers if the work could go ahead in the E/B (other) direction, Mr Spiers said that he would be happy if the work went ahead. The claimant asked if Mr Spiers could provide an e-mail to confirm this. As Mr Spiers was on the golf course he could not provide a
permit/e-mail. The claimant when asked by Mr Price did Mr Spiers give him permission to produce a permit replied no and confirmed also that Amey had not ever produced such a permit before. The claimant indicated that he then had a decision on how to pass this permission to work on to the trainer and supervisor, he had no e-mail or permit to proceed, he considered sending an e-mail to the supervisor to confirm permission, but this would have put the supervisor in a difficult position. He was not able to come into the office to see the trainer as he was at a family dinner. To ensure the training proceeded the claimant considered the only course of action was to produce the permit himself, which he did, and that his intention was to deliver contract needs, avoid additional costs of re-scheduling, he was not intending to deceive, wanted to ensure training happened, that his judgement was clouded by these issues and he had no personal gain in doing this. On asking if there were any procedures to ensure permits were raised in good time the claimant answered that he relied on others doing their job. Mr Price stated that it should be acknowledged that Road Service are very stringent in processing the permit system, the claimant confirmed that the issue was very worrying and if he could go back he would do things differently. In response to the claimant’s question how long the investigation would take Mr Price confirmed that he would consider whether a further meeting was now required with Mr Spiers or others at the Lurgan Depot. The claimant pointed out that the allegation was in both misconduct/ negligence and gross misconduct and asked if he would lose his job. Mr Price replied that he was only concentrating on the investigation stage and could not state the outcome at that stage.

30. On 13 April 2012 the claimant e-mailed Mr Price a nine page document again setting out the background and mitigating factors put by him to the alleged gross misconduct/negligence and attaching relevant e-mails. The claimant stated therein, ‘Although some would argue that permits are not a contractual requirement Lurgan policy in relation to traffic management activities requiring lane closure requires a permit to be in place or evidence that permission for the lane closure has been granted. In this case I had neither but what I did have was the verbal permission from someone within Roads Service whom I have known for a long number of years…’

31. On 16 April 2012 Mr Price recorded, ‘Note: D.Kerr Investigation Case 7463

Monday 16 April GP, BS, RG

Barry Spiers asked not to be involved in D.Kerr disciplinary.

Previous conversation stands i.e. on 11 April.’

32. On 17 April 2012 Mr Tony McAllister, General Manager of Amey Lagan Roads wrote in a letter to Mr Price,

‘Incident regarding Forged Permits to access Project Road

I refer to our discussions regarding the above incident and as general manager of DBFO Co feel I must express my concerns formally about the incident.

While the details available to DBFO Co have been fairly basic, nevertheless I feel this event could have had fairly serious consequences for DBFO Co and indeed the Department had it presented consequences in relation to their responsibilities.

I would seek your assurance that the matter has been dealt with internally and more importantly that such an event will not reoccur....’

33. On 19 April 2012 Mr Price contacted Ms Swiffen, the case history notes record under background information that he was close to completing his investigation and had held an investigatory meeting with the claimant, ‘and a meeting with the client.’

34. One HR’s case history records on 20 April 2012 Ms Swiffen advised Mr Price regarding the investigation report compiled by him that he delete the wording, ‘‘The allegation of falsifying a record is upheld’’ as this is the disciplinary hearing ‘manager’s ultimate decision’. Mr Price subsequently concluded his investigation report in which he summarized the evidence found, his investigation meeting notes, his phone call with Mr Spiers on 11 April 2012 following the informal discussion with the claimant on 4 April 2012 and made reference to other relevant material. He recorded his call with Mr Spiers as,

‘On 11/04/12 GP called Barry Spiers of DRD roads Service by phone regarding discussion between him and David Kerr (on 28th March).

- BS confirmed with DK permits for training refused.

- Permit for the other direction requested by DK – BS stated, no he could not provide.

- BS stated that he did not say the work could not happen but did state that he could not provide a permit.’

Under any other relevant material Mr Price listed, ‘Letter received (17 April) from Amey Client DBFO (Amey Lagan Roads) expressing concern about this incident of forged permits.’

Mr Price noted in his conclusion that the fact that the permit was falsified was not in dispute, referred to the mitigating factors cited as previous failure of works and potential cancellation of high priority training. Mr Price considered the cost of failed training would have been £500.00 and reasoned that the risk of falsifying a Road Service document was not worth taking to save one night’s training and remarked many of the mitigating factors could have been avoided through earlier intervention and more organised and pro-active management within the works team. He concluded that the discussion with Mr Spiers confirmed that, ‘Road Service may not have prevented works proceeding but they did not give permission to create a permit nor did they know that a permit was to be produced’. Also, that if ‘DRD Road Service or DFBO Co (Amey Lagan Roads) had found out about a forged permit this could have left Amey highly compromised and brought the Company and its immediate client into disrepute. The DBFO letter confirms this issue is of major concern to them.’

In conclusion Mr Price stated that he had no option but to recommend the case proceed to the disciplinary stage.

35. On 24 April 2012 Mr Price e-mailed the claimant advising that the investigation stage had been completed, a disciplinary hearing letter would be sent out that day to give full details and that the hearing would take place on 27 April 2012. The claimant replied that the notification period given was outside the timescale provided in the company’s disciplinary procedure and so the hearing was subsequently rearranged for 2 May 2012 to rectify this. In a separate e-mail on 24 April 2012 Mr Price attached a copy of the disciplinary hearing letter and ‘other associated documents’, including his investigation report. In the disciplinary hearing letter dated 24 April 2014 Mr Price confirmed to the claimant that following the investigatory meeting on 12 April 2012 he was required to attend a disciplinary hearing to discuss the allegation, ‘Falsification of a record (Permit 12-CN- 049)’. Minutes of the investigatory meeting were enclosed. The letter advised that the allegation could be deemed as constituting gross misconduct and if proven at hearing that he, ‘may be summarily dismissed’. Prior to the disciplinary hearing the claimant was provided copies of the investigation report, investigation notes, informal meeting notes, Amey Disciplinary Procedure, Mr Price’s handwritten notes of his conversation with Mr Spiers on 11 April 2012, Mr McAllister’s letter of 17 April 2012, Mr Hill’s statement of 4 April 2012 and on request Mr Price’s handwritten diary notes of 4 April 2012.

36. At 10.00 am on 2 May 2012 the claimant attended a disciplinary hearing conducted by Mr Shanks, with Ms Bloor present as a note taker. Minutes were taken and are accepted as accurate. At commencement of the hearing Mr Shanks acknowledged the respondent’s initial failure to give the claimant three days’ notice of the disciplinary hearing but the claimant confirmed that he was now happy to proceed. Mr Shanks compared documents with the claimant, the claimant did not have the case history report, and Mr Shanks indicated that he would seek advice as to disclosure. The claimant raised that the note taken of the meeting between him and Mr Price was not an accurate record and that he had had to request documentation. It was agreed that the hearing was about a permit that had been falsified. The claimant put it to Mr Shanks that he did not falsify Road Service consent, that he had verbal consent. The claimant explained to Mr Shanks that there was a background of mitigating factors, documents, penalty points and that failure to manage cyclic jobs could lead to termination of the contract. Mr Shanks thoroughly went through events and mitigating factor raised by the claimant in particular penalty points on the contract, the Road Service personnel and permit procedure, permits required for the training in question, the events and e-mails leading up to the afternoon of 28 March 2012 and the claimant’s conversation with Mr Spiers. The minutes record,

‘MS- Why didn’t you ask Raymond whilst you were on the phone?

DK- At that stage I didn’t know BS was not in work and on the golf course. I just thought it was a normal return of a phone call. I requested the permit for training, he said go ahead. I said can you send me an email, he then said he was on the golf course. This was a gentleman’s agreement. I have known BS for over 20 years and worked with him previously.

MS- Why didn’t you ask RG?

DK – I didn’t want to.

MS- Was this a perceived permission.

DK- I knew he gave me permission.

MS- How?

DK- I have no shadow of doubt he gave me permission. He said get the work done.

MS- What about the permit?

DK- He never said.

MS- This is a problem according to GPs notes.

DK- I had verbal permission, how could I get that to the trainer.

….

MS- how did you copy the permit?

DK- I took an old one. The TM foreman needs this in the work pack, if challenged

….

MS- How did you do it?

DK- I did it on the computer. I felt this was the easiest way to get this permission to the trainer. I thought it would have been suspicious due to the previous closure query.

MS- I have serious concerns over that. In 2005, there was a fatal accident involving an Amey operative on M8 in Glasgow inside the closure. There was a police investigation, this included document checks including road space bookings. How would a similar event have left you? Would BS say he gave you permission?

DK- I have spoken to him since and he said he gave permission, it’s the way it has been recorded. I would trust BS implicitly, I previously worked with him.’

Mr Shanks put to the claimant Mr McAllister’s letter of 17 April 2012 that he felt the event could have fairly serious consequences for DBFO Co and indeed the Department had it presented consequences in relation to their responsibilities with which the claimant disagreed. The financial implications of the training course not proceeding were discussed which the claimant put at £500.00 for each of the eight people booked on the course plus the cost of the trainer which could have been around £5000 and they also discussed the deadline for trained staff for the start of the cyclic work programme.

The claimant raised his concerns with the investigation stage carried out by Mr Price pointing out that not everything said in the investigation meeting was written and that Ms Spiers should have been asked ‘did he give permission?’, also that Mr Price had given the impression he had not spoken to Mr Spiers whereas he had on 11 April 2012 but did not inform the claimant until after the investigation meeting and in particular was concerned as to the way the conversation with Mr Spiers was recorded, that the focus was on the paper work and not on the permission and that it was, ‘being implied that he would not give permission.’ Mr Shanks put to the claimant that, ‘the bottom line is that you falsified a document’, the claimant stated, ‘I produced this on the understanding that BS had given me permission to undertake training that night’, and expressed concern at the change in wording from falsification to forgery which he considered very emotive and stated he had, ‘grave concerns GP thinks BS hasn’t given me permission.’ The hearing was adjourned briefly to provide copies of emails from Mr Hill to team members and responses regarding the permits and Mr Russell’s email to Mr Hill. The claimant raised that Mr Hill had not consulted him over the permit or copied him in, in his email. During a break in the hearing Mr Shanks spoke with Ms Sally Butkovic of One HR about his concern that here was no direct statement from Mr Spiers and that he was borderline between making a decision of dismissal or giving a final written warning and was advised that an option was to adjourn the hearing pending him making a request to Mr Spiers to provide a statement, but if refused he would then have to make a decision with the information he had.

Mr Shanks indicated to the claimant that he would seek advice from, ‘1HR regarding the GP & BS conversation/ statement being taken verbatim and if BS can be forced to respond’, and that he had asked Mr Price for a statement or email agreement of the conversation he had with Mr Spiers. The meeting was adjourned to a date to be advised and concluded with the clamant stating, ‘I appreciate that this is Gross Misconduct as my job is on the line.’

37. On 3 May 2012 Mr Price confirmed by e-mail to Mr Shanks,

‘I called Barry Spiers by phone yesterday at approx. 17:30

I asked Barry if he would be willing to provide a statement or e-mail stating his version of events (in relation to his discussion with David Kerr on 28 March).

Barry stated that he has been advised by Roads Service senior management to stay out of this case. He therefore cannot provide any written statement.

I read out my diary record to Barry and he agreed that it was an accurate version of events ie while he did not specifically tell David he could not go on the road he did specifically state he could not provide a permit.’

38. Mr Shanks again spoke to Ms Butkovic on 3 May 2012 following Mr Price’s e-mail, One HR’s case history notes record under background information,

‘● you have been further researching the case and think that whether Barry [h]as given verbal consent or not becomes immaterial.

· There is a contract in place for the service provided and the procedure states that the road permit is actually authorised ultimately by someone else and not Barry.

· Amey is not allowed on the road network until a permit is issued.’

And, under guidance provided to Mr Shanks, ‘If David knows that issuing a work permit himself is against procedure then being told to do it by someone else does not mitigate his actions.’

39. On 4 May 2012 the disciplinary meeting was reconvened and continued. In particular:-

· Mr Shanks referred to and discussed with the claimant Mr Price’s e-mail of 3 May 2012 and conversation with Mr Spiers.

· Mr Shanks with the claimant’s permission asked Mr Nick Russell into the meeting to clarify whether in his e-mail of 3 April 2012 when referring to previous incidents under the forgery of permits’ issue he meant there had been a permit forged previously, Mr Russell said no, that he was referring to previous incidents not connected to a forged permit. Mr Russell confirmed on this occasion the claimant had spoken, ‘to BS on the phone and BS wouldn’t send anything through’. He continued that the claimant had given Mr Black a permit that he had made, ‘I was aware of it being made. DK asked me for a blank word permit.’

· The claimant raised that Mr Price spoke to Mr Spiers first before him and felt this influenced the case; Mr Shanks replied that, ‘in my opinion nothing from that conversation affected the case’. The claimant stated that if he had spoken to Mr Spiers, ‘he would have said he gave permission to be on the network.’ Mr Shanks responded that, ‘This was an initial assessment by GP to decide if a full investigation was required. I don’t believe that the questions prior affected that.’

· The claimant raised the failure to record in the investigation that he had said if he had spoken to Mr Spiers that he would have got a statement.

· Mr Shanks put to the claimant that he was ‘missing the point on falsifying the permit, this is not about permission. The allegation is that you produced a permit, a forgery; this is a legal document, a road space booking.’

· The claimant stated that there was a breakdown in the system for applying for a permit, and that the system failure for the permits forced his action.

40. Following adjournment of the hearing at 1:00 pm Mr Shanks considered the case and noted down his thoughts covering points including those raised by the claimant. Mr Shanks considered in particular; the training and implications of it not proceeding; the permit forgery and implications of this as to the relationship between the respondent and its client, noting if there had been an incident the respondent could have had an insurance liability leaving the respondent legally and contractually exposed; whether the authorising officer named knew the works were planned; what the production of a forged official document does for staff morale when a senior manager acts in an unprofessional manner; that the statements of Mr Russell and e-mail of Mr Hill identified a huge integrity issue; the failure to observe required notice in the permit application system; the claimant’s contention that Mr Spiers, ‘since confirmed he said works were ok’; the order of investigation and call to Mr Spiers, notes kept not being verbatim; Mr Hill’s e-mail to team members; and the procedural issue in that the suspension letter said two days but no notification of an extension was given.

41. At 2.00 pm Mr Shanks met again with the claimant and read out to him a statement from the notes he had prepared during the break, stating, ‘For a man of your experience you should have not found yourself in this position. The mitigating factors you presented do not justify the decision you took to produce a forged permit’, in particular he put to the claimant his thoughts as to the training and implications as to the forgery of the permit saying, ‘There is no doubt the production of this forged permit will affect the relationship between Amey and its Clients…’ and referred to the potential insurance liability, staff morale and there being a huge integrity issue. When asked had the named authorizing officer known the work was planned the claimant responded that he did not know. Mr Shanks concluded with his decision, ‘I am content with what I have just said leads me to terminate your contract with immediate effect. This is not an easy decision. You presented a forged document and have damaged the client relationship.’

42. On 9 May 2012 Mr Shanks wrote to the claimant and set out the reason for his dismissal on 4 May 2012 for gross misconduct including, ‘The specific nature of the gross misconduct was that on 28 March 2012, you falsified a DRD Roads Service document (a Client document). This traffic control permit was to grant Amey permission to close lanes 1 and 2 (alternating) eastbound on the M1 motorway from Wednesday 28 March 2012 to Friday 30 March 2012 (23:00 to 06:00 hours each night).

We formed the belief at the time that you were guilty of the misconduct on the grounds that you admitted to producing this falsified record thus exposing Amey to legal liabilities as well as endangering the client relationship which could potentially bring this company into disrepute.’

The claimant was advised he could appeal on one or more of the following grounds:-

‘

‘● The procedure was not properly followed.

· New information has become available

· The outcome is inappropriate for the offence.’

43. By letter of 14 May 2012 the claimant wrote to Mr Shanks to appeal against his dismissal for gross misconduct because he considered in summary:

· The sanction too harsh given his previous unblemished record and early admittance that he created the permit document.

· The information in the document was correct.

· The investigation was compromised by Mr Spiers being spoken to prior to his hearing and failure to make verbatim notes and the process was in contravention of the disciplinary procedure.

· His points in mitigation were not taken into account.

· No other disciplinary sanctions were ever considered by Mr Shanks.

· No cognisance was taken of the fact he had nothing to gain.

· It was not a fundamental breach.

44. By letter of 21 May 2012 it was confirmed that an appeal meeting would take place on 29 May 2012 heard by Gordon Wilson, Service Director (Amey Public Services). The appeal hearing was subsequently postponed to 12 June 2012 to accommodate the attendance of a representative for the claimant.

45. On 12 June 2012 the claimant attended the appeal hearing heard by Mr Wilson accompanied by Mr Michael Kiddle of UCATT, his union representative. Ms Bloor was present as a note taker. The typed minutes of the appeal hearing are accepted as accurate. At the hearing the claimant provided to Mr Wilson and read from a five page document he had prepared with his points in support of the sanction being too harsh and the procedure not being properly followed. In summary:-

The claimant submitted the sanction was too harsh in view of:-

· His unblemished record.

· His early admittance that he created the piece of paper.

· His full co-operation with the enquiry.

· That the information contained was correct.

· Verbal permission was granted by Mr Spiers.

· No other mitigating points were taken into account by Mr Shanks save the cost saving factor being accepted.

· Mr Shanks ignored the mitigating factor of the issue of not attending a training course being inappropriately raised at interview by
Ms Easy-Muirhead and hence the cost of cancelling training accordingly being uppermost in his mind.

· No consideration was given to any alternative sanction.

· The outcome of the hearing was predetermined.

· The conduct was from the outset categorized as gross misconduct.

· There was no personal gain or reward.

The claimant submitted that the procedure was not properly followed because:-

· Regarding the informal meeting the investigating officer Mr Price had already formed an opinion in the matter, did not remain objective and did not fully record the meeting with the claimant in typed up notes.

· Skills and qualities outlined in the respondent’s disciplinary procedure and discipline tips for managers were not utilised in the investigation, Mr Price failed to remain objective when hearing points which did not accord with his own, failed to understand other contributing factors presented in mitigation and was dishonest not making the claimant aware of his prior conversation with Mr Spiers.

· The cost of failed training was incorrectly recorded in the investigation report at £500 rather than £5000 to £6,500.

· The investigation was conducted by a mere telephone call to Mr Spiers recorded as recollection notes rather than verbatim to cloud the issue and achieve the gross misconduct charge whereas a formal approach was otherwise adopted.

· A thorough investigation was not completed in that evidence supporting his case was not looked for as early as the informal meeting, this prejudiced the outcome and then Mr Price constructed his investigation to prove the gross misconduct charge.

· Contrary to the indication in the investigation letter the investigation took twelve days rather than two and no notification was given as to the delay.

· The proposed timescale of the disciplinary hearing was in contravention of the standard notice period in the disciplinary procedure and when raised was flippantly dismissed.

· The way the investigation was carried out had resulted in a great deal of anxiety to the claimant and his family.

· Within the dismissal letter Mr Shanks cited ‘could potentially bring the company into disrepute,’ whereas the example in gross misconduct / negligence examples is, ‘not the potential’, but, ‘Bringing the Company into disrepute’.

· The disciplinary charge changed from falsification in the invite to the disciplinary hearing to forgery in the outcome because it was clear that the information was correct and thus was not falsified and so was changed to allow gross misconduct result to stand.

Mr Wilson listened to the claimant’s statement and discussed with him the matters raised. Mr Wilson in particular enquired about the timescale of the disciplinary process. Mr Wilson commented that, ‘the procedure and wording about bringing the company into disrepute is Gross Misconduct. A more accurate reflection in misconduct is falsification of records. Falsification & Forgery are the same thing in people’s minds. In my mind there was no personal gain but I understand your difficulty with the wording’.

Prior to concluding the appeal hearing Mr Wilson asked if Mr Kiddle had anything to add, he commented that the claimant’s deputy was not asked why he did not put the form in on time, he queried what training was given to Mr Price on disciplinaries, stated that there was a serious implication as there was no written statement from Mr Spiers, that the claimant used his initiative as the permit was not in on time, there was no malice, had put his hands up and he felt this should have warranted a first written warning and procedural review.

46. One HR case history notes record on 14 June 2012 Mr Wilson spoke to Ms Rebecca Swiffen and under background notes,

‘● David brought to the appeal hearing substantial mitigation for his actions.

· The basis of the appeal was on the process and you feel that the process is flawed in terms of timescale.

· Your view is that although David falsified a record, there was no personal gain in this instance.

· You would like to reinstate David and give him a final written warning.’

And, under guidance that she, ‘advised that although falsification of a record can be viewed as misconduct or gross misconduct depending on the type of record and the circumstances, the allegations against David, including, ‘bringing the Company into disrepute’ due to the possible damage the incident could have caused to our relationship with the Client who is responsible for producing the road permit which David falsified. This is another reason why the allegations against David were viewed as gross misconduct’, and her recommendation that Mr Wilson, call Wayne Donaldson HR business partner to gain authorisation for the reinstatement as he approved the dismissal. Mr Wilson confirmed that he would call Mr Donaldson to discuss his decision prior to delivering it.

47. After his call with Ms Swiffen, Mr Wilson telephoned Mr Donaldson as suggested, Mr Donaldson was on leave at the time and did not keep a written record of the conversation but recollected that when Mr Wilson telephoned him Mr Wilson had concerns and had not yet made up his mind on the appeal decision, he was thinking about the timescales involved and severity of the sanction. Mr Donaldson advised Mr Wilson if he had any issues and had not yet made up his mind he should go back to the, ‘contract’, a term Mr Donaldson used to refer to the business where the person he was advising worked, and satisfy himself that he had all the evidence to make up his mind. Mr Wilson confirmed that he would do this. Mr Donaldson had no further contact with Mr Wilson before he made his decision on appeal.

48. One HR case history notes record Mr Wilson on 15 June 2012 explained to advisor Ms Jessica Jeram that he ‘had discussed the case with your HRBP and now wish to uphold the dismissal’.

49. By letter of 15 June 2012 Mr Wilson wrote to the claimant and confirmed his decision to uphold the decision of Mr Shanks to dismiss him thus concluding the respondent’s disciplinary procedure. Mr Wilson stated,

‘During the hearing you were invited to detail the grounds of your appeal which consisted of the following:

· The procedure was not properly followed

· The outcome is inappropriate for the offence

Having considered your appeal very carefully and taken into account your representations, I agree, there was a delay between the investigation and the disciplinary hearing and the Amey disciplinary procedure in terms of the timescales not followed. However, I reject the appeal that dismissal was an inappropriate outcome for the offence. The deliberate and public falsification of a permit to work, clearly had a detrimental impact on the reputation of the company and brought Amey into disrepute with our client the Roads Service in Northern Ireland and also Lagan, our joint venture partner, who expressed their concerns formally in writing.’

50. Mr Wilson no longer works for Amey Public Services and is resident outside Northern Ireland.

LAW RELEVANT TO LIABILITY

51. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

52. Article 130 of the 1996 Order sets out how the question of whether a dismissal is fair or unfair is to be determined.

53. Article 130(1) of the 1996 Order provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principle 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.

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

54. Under Article 130(4) of the 1996 Order 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.

55. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods v Jones [1983] ICR17, such that;

1. The starting point should always be the words of Article 130(4).

2. In applying the Article an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

3. In judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from that of the employer.

4. 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 and another quite reasonably take another.

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

56. In the context of a misconduct case Arnold J in British Home Stores v Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

57. Harvey on Industrial Relations and Employment Law at division D1 Unfair Dismissal/Misconduct, discusses dismissals relating to the conduct of an employee at paragraphs [1351]-[1600] and in particular sets out under (4) Reasonable grounds for the employer's belief (a) Admissions and guilty pleas, at paragraph [1461], ‘The requirement to hold such investigation as is reasonable in all the circumstances is only really applicable where misconduct is suspected. Clearly if the employee admits that he has committed the misconduct, there is little purpose in carrying on any investigations. The employer will then be acting reasonably in believing that the misconduct has been committed …’

58. The English Court of Appeal in Strouthos v London Underground Limited [2004] EWCA Civ 402 set out at paragraph 12 , ‘It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge…’

59. In Silman v ICTS (UK) Ltd [2006] UK EAT/0630/05 reasons for the claimant’s dismissal included misuse of company time however an allegation of misuse of company time was not included in the statement of impugned conduct of the employee. The EAT held that although an employer could not dismiss for a reason to which the employee had never been fairly alerted, shifts in the focus of the case would not lead to an obligation on the employer to issue a fresh statement on each occasion. It would frequently happen in the course of a disciplinary hearing that the evidence emerging would identify potential misconduct, which, although closely related to the original misconduct, was a variation of it. There would be cases where the employer wished to deal with a quite distinct act of misconduct that had emerged as a result of the disciplinary or investigative process and, in those circumstances, it would have to send a fresh statement in writing. In SILMAN, there was very little difference between the original complaint, which was unauthorised absence, and misuse of the company’s time by the employee sitting in his car and not effectively carrying out work for the benefit of the company which was included in grounds for his dismissal. In both cases, the essence of the complaint was that no work was being done for the company. The employee had the witness statements and knew that his behaviour over the course of the two days in question was under consideration. The grounds for dismissal were considered subsumed in the original charge and the appeal dismissed.

APPLICATION OF THE LAW TO THE FACTS FOUND

60. It is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

61. It was not in dispute that the respondent’s genuine reason for the claimant’s dismissal related to his conduct. Misconduct is a potentially fair reason for dismissal.

62. The tribunal must decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, considering whether the dismissal was procedurally fair and fell within a range of reasonable responses, taking into account all the circumstances including the size of administrative resources of the employer’s undertaking, and equity and substantial merits of the case.

63. In this case the claimant’s early admission that he had fabricated the permit meant that an investigation to form an evidential basis for a reasonable belief by the respondent in the act of misconduct was not necessary. The tribunal is in the circumstances satisfied that the respondent acted reasonably in believing that misconduct had been committed.

64. The investigation was however important to allow the claimant an opportunity to respond and put forward potential mitigating factors which could affect the appropriate sanction and the respondent’s consideration of these. The claimant contended that the conduct of the investigatory process had prejudiced the outcome of the disciplinary and appeal hearings. The tribunal consider that the respondent’s decision to categorize the offence as potential gross misconduct rather than misconduct was reasonable given the clear example ‘falsification of records’ provided in its procedure. The tribunal do not consider that the outcome of the disciplinary hearing was prejudiced by the conduct of the investigation. The tribunal find Mr Shanks fully considered concerns raised by the claimant at the disciplinary hearing regarding the way the investigation was carried out and any resulting prejudice. Mr Shanks ensured that the claimant was happy to proceed with the disciplinary hearing following the initial error over notice periods and adjourned briefly to ensure that the claimant was provided missing documentation. Of great concern to the claimant was establishing in mitigation that he had been given permission to be on the network and hence that the information in the permit he had created was correct and that the opportunity to obtain this had effectively been lost because of Mr Price’s approach to Mr Spiers before the investigatory meeting. Mr Shanks sought to address this concern by adjourning to seek advice and investigate further which he did, but ultimately concluded that in any event the case did not turn on permission to be on the network, but whether the claimant knew that issuing the permit himself was against procedure, he clearly put to the claimant that he was missing the point on falsifying the permit, that it was not about permission, the allegation was that he ‘produced a permit, a forgery’. The tribunal find Mr Shanks’ decision as to the outcome of the disciplinary hearing was not affected by the conduct of the investigation prejudicing the claimant’s opportunity to establish this point in mitigation.

65. A fair disciplinary hearing involves a number of aspects including allowing a person to know the charge against them. Mr McKee acknowledged that the issue as to the reputation was not specifically put; but that the facts as they were available were put to the claimant and that the claimant had accepted that Amey Lagan Roads Limited had complained. The tribunal notes that on 24 April 2012 the claimant was e-mailed the investigation report referring to the complaint letter by Amey Lagan Roads Limited which, ‘confirms this issue is of major concern to them’. The tribunal note Amey Lagan’s letter of 17 April 2012 was put to the claimant at the disciplinary hearing albeit that disagreed with the point. Also, as recorded in minutes Mr Shanks put to the claimant, ‘There is no doubt the production of this forged permit will affect the relationship between Amey and its Clients’ and on confirming his decision to dismiss , ‘You have presented a forged document and have damaged the client relationship.’ Mr McKee referred the tribunal to the SILMAN and STRUTHOS cases and the tribunal is persuaded that in terms of the framing of the charge against the claimant that disrepute was an actual or potential effect of the production of the permit by the claimant, it was something that the claimant was fairly alerted to as flowing from the act with which he was charged ,that it was not in the circumstances a reformulation of the charge and was effectively subsumed in the original charge.

66. The tribunal consider that Mr Shanks conducted the disciplinary hearing in a thorough and open minded way. The claimant had the opportunity to put his case and the tribunal is persuaded Mr Shanks gave proper consideration to the background of mitigating factors put forward and the claimant’s unblemished record before reaching a conclusion, and in particular as acknowledged by the claimant at hearing based on Mr Shanks’ evidence and One HR’s records that he considered the lesser sanction of a final written warning before ultimately deciding upon dismissal. The tribunal is persuaded that the disciplinary hearing was overall procedurally fair and its outcome was not prejudiced by the conduct of the investigation prior to it.

67. The claimant submitted that it was his firm belief that Mr Wilson had wanted to
re-instate him. The tribunal did not have the benefit of Mr Wilson’s oral testimony but from the evidence available consider that at the appeal hearing full and proper consideration was given by Mr Wilson to points raised by the claimant on appeal, that Mr Wilson fully reviewed the disciplinary process and disciplinary decision and whilst initially, as recorded by One HR, was considering re-instating the claimant that he finally after further consideration of the case decided to uphold the decision to dismiss. There is no evidence before the tribunal upon which it is persuaded that the decision made on appeal to uphold the disciplinary decision was other than solely Mr Wilson’s own decision. The tribunal find the role played by Mr Donaldson was only in advising upon correct procedures required to be followed.

68. The claimant raised that the charge against him had been falsification of a record, that the dismissal letter referred to his conduct as potentially bringing the company into disrepute whereas this reference changed in the appeal decision to brought the company into disrepute despite limited evidence of this and no formal charge to this effect. The tribunal notes a variation also in terms used by Mr Shanks in the disciplinary hearing, stating, ‘There is no doubt the production of this forged permit will affect the relationship between Amey and its Clients’ but on confirming his decision to dismiss said ‘You have presented a forged document and have damaged the client relationship’ however then in the dismissal letter referred to, ‘endangering the client relationship which could potentially bring this company into disrepute.’ The tribunal as discussed above is satisfied that the claimant was dismissed by Mr Shanks for the charge of falsification put within which the potential or actual consequence of disrepute was subsumed. The tribunal find Mr Wilson as appeal manager carried out a proper review of the disciplinary process and disciplinary decision made by Mr Shanks on the two grounds raised by the claimant, procedure and appropriateness of the sanction, not a re-hearing, and was thorough, open-minded and fair in his handling of the appeal hearing and consideration of the appeal grounds raised. The tribunal are satisfied that Mr Wilson reviewed the dismissal decision based on the facts and consequences to which the claimant had already been fairly alerted and are not persuaded Mr Wilson’s reference to having brought the respondent into disrepute rather than potential disrepute or the absence of a formal charge to this effect gives rise to a procedural defect. The tribunal are satisfied that the appeal procedure was fair.

69. The tribunal does not consider that the conduct of the investigation prejudiced the appeal outcome.

70. The tribunal is persuaded procedures followed by the respondent were overall fair, that the respondent carried out as much investigation into the circumstances as was reasonable and Burchell test has been met.

71. The claimant complained that despite his previous unblemished record and mitigating circumstances raised that dismissal was the only sanction considered, that it was too harsh and fell outside the band of reasonable responses. Whilst it is clear from the evidence that a final written warning was in fact considered by Mr Shanks and re-instatement by Mr Wilson the issue however for the tribunal is not whether a lesser penalty would have been appropriate but whether for the misconduct in question the penalty of dismissal fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. Documentation issued to the claimant in the course of his employment clearly identifies as a specific example of gross misconduct falsification of records with the possibility of summary dismissal, the claimant was aware of this and also as stated by him in his letter to Mr Price was aware of the respondent’s policy in relation to traffic management activities requiring lane closure to require a permit to be in place or evidence that permission for the lane closure had been granted. Whilst a more lenient employer might not have decided to dismiss, the tribunal in all the circumstances of this case is persuaded that the respondent genuinely considered this a serious matter and that the respondent’s decision to dismiss the claimant for fabrication of the permit, despite his clear record and mitigating circumstances raised, fell within a band of reasonable responses which a reasonable employer might have adopted in the circumstances and was a sufficient reason for dismissing the claimant.

CONCLUSION

72. It is the tribunal’s unanimous finding that the reason for dismissal was misconduct, the dismissal was procedurally fair, the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and that the respondent acted reasonably in all the circumstances including the size and administrative resources of the respondent’s undertaking, in treating the claimant’s misconduct as a sufficient reason for dismissing the claimant, in accordance with equity and the substantial merits of the case. The dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order. The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.

Chairman:

Date and place of hearing: 28 November, 10 & 17 December 2012, Belfast.

Date decision recorded in register and issued to parties:

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