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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilson v Randox Laboratories Ltd [2013] NIIT 00174_12IT (09 January 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/174_12IT.html
Cite as: [2013] NIIT 00174_12IT, [2013] NIIT 174_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 174/12
CLAIMANT: Gareth Wilson
RESPONDENT: Randox Laboratories Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal by reason of having made protected disclosures is dismissed. The tribunal also unanimously finds that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mr J Kinnear
Mr J Magennis
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Jacques Algazy, of counsel, instructed by Elaine Torrens of Randox Laboratories Ltd.
THE SOURCES OF EVIDENCE
1. The tribunal heard evidence from the claimant and for the respondent from Claire Martin, John Lamont, Linda McKee, Ivan McConnell, and Pauline Armstrong.
2. The tribunal also received two bundles of documents amounting to 470 pages, closing written submissions from the claimant and a submission on the law from Mr Algazy.
THE CLAIM AND DEFENCE
3. The claimant claimed that he was unfairly dismissed because he made two protected disclosures. The respondent denied the claimant’s claim in its entirety.
THE ISSUES
4. Following a Case Management Discussion on 31 May 2012 the parties agreed the main legal and factual issues in dispute. However, subsequently some minor amendments were made to them by consent. The agreed issues are:-
(1) Did the claimant make protected disclosures, as outlined below?:-
Disclosure One
The claimant alleges that senior management in the respondent company wanted to release an evolution analyzer ahead of schedule. The claimant alleges that he advised that the design schedule would not be fulfilled, that the respondent company will not be able to test the products sufficiently or as planned and that it was not in accordance with Compliance Regulations. He further alleges that he advised them that it may be unsafe.
That disclosure was made on three occasions. Firstly, at a feasibility meeting in or around August or September 2011; secondly, on the following day in informal discussions; and, thirdly, on the same day as the feasibility meeting in informal discussions with his line manager, Aidan Walsh and with Michael McQuillan.
Disclosure Two
The claimant alleges that in discussions of verification testing of an early prototype of the analyzer, he had been instructed by his line manager and Claire Martin not to perform verification testing as required and was also instructed to falsely fill in design documentation to say that testing could not be completed and would be done later on a later version of the prototype.
The claimant alleges that he told those two individuals that this would not comply with internal control regulations and would also not be in compliance with FDA Regulations. He further stresses that he alleges that documentation was to be falsely completed.
(2) If there were such disclosures, were those disclosures included in the claim form lodged in the tribunal? If not, should the claim be amended to include additional matters?
(3) Did the claimant suffer any detriment as a result of any public interest disclosure?
(4) Was the claimant’s dismissal as a result of any public interest disclosure?
(5) What was the reason for the dismissal?
(6) Was the claimant fairly or unfairly dismissed?
(7) If the claimant’s dismissal is found to be procedurally unfair, what was the likelihood that the claimant would have been fairly dismissed if a fair procedure had been followed?
(8) Does the respondent owe the claimant for accrued unpaid leave entitlement?
(9) If so, how much?
(10) If the claimant’s dismissal was unfair or if the claimant unlawfully suffered a detriment as a result of a public interest disclosure, what compensation should be awarded?
FINDINGS OF FACT
5. (1) The respondent employed the claimant as an Engineering Project Leader from 18 March 2008 until his dismissal on 19 October 2011.
(2) The claimant was responsible for the design and development of the evidence evolution analyser. It is a fully automated in-vitro diagnostic analyser for use in hospitals to test the levels of cholesterol in a person’s blood and also to test urine and saliva.
(3) Peter Fitzgerald (Managing Director and owner of the respondent company) showed a keen interest in the project and on occasion spoke to the claimant personally to be briefed on progress and issues. The claimant’s knowledge, competence, and dedication to his task were accepted and recognised within the respondent company.
(4) In March 2009, Aiden Walsh was appointed the Engineering Department Manager. Early in 2011, the claimant was introduced at work to Ben Arlett from Atlas Genetics. He was a Cambridge qualified engineer as was the claimant. Ben Arlett was co-operating with the respondent on a project on behalf of Atlas Genetics. The claimant was not involved in this piece of work.
(6) In early September 2011, Aiden Walsh informed the claimant that the respondent was in discussions with a Singapore customer to have four analysers as finished products by the start of January 2012.
(7) The claimant was concerned as, in his view, this date could not be met.
(8) The claimant’s concern was that the analysers would not be developed to the quality and safety standards required and if sold in that state that customers would be unhappy with them. He also had, what he believed, was a well-founded fear that if this was done the product could be unsafe and injure a user or mis-diagnose a patient’s condition.
(9) The claimant arranged a feasibility meeting on 7 September 2011; to study the implications of trying to meet the January 2012 deadline; to assess if it were possible; and to identify any risks which he felt it posed. He invited the key stakeholders from across the company who would have to support the delivery of the analysers. The invitees included heads of departments and senior managers including Pauline Armstrong (head of Quality and Regulatory Compliance), Gary McAreary (Analyser Manufacturing Manager) and Claire Martin (Global Manufacturing Manager).
(10) Representatives from a number of departments, including purchasing, chemistry RND, the chemistry validation team and a number of engineers, including Stuart Jackson (head of the Physics Team) and Jenna (Validation Engineer for the evolution project) were present.
(11) Everyone at the meeting thought that the January 2012 date was not achievable except Stuart Jackson. Stuart Jackson thought that the team should continue to work on the project and then see at what stage they were at by Christmas 2011.
(12) Claire Martin told the meeting that she would tell Peter Fitzgerald and Sonya Ferguson that the January 2012 date was not achievable according to the views of those at the feasibility meeting.
(13) Peter Fitzgerald and Sonya Ferguson (Senior Manager) were not happy when they were told that the target date would not be met.
(14) A few days after the feasibility meeting Stuart Jackson approached the claimant and told him that he had been asked to take over responsibility for delivery of the four analysers to Singapore. He said he would take over certain tasks and responsibilities so that the claimant could focus on delivering the technical element of the project. He further stated that he would take over all project planning, all interfacing and issues with other departments including reporting to and taking direction from Peter Fitzgerald and Sonya Ferguson. The claimant’s title was unaffected and his other terms and conditions remained the same. Stuart Jackson’s background was in software which was a problem identified by the claimant as a weakness in the respondent’s inability to meet the January 2012 delivery date.
(15) The claimant considered that he had been marginalised and demoted, and this caused him stress. He also felt isolated as he believed decisions were being taken about the project without his involvement.
(16) A few days later, in the canteen, the claimant was discussing the situation with a few colleagues when he raised the topic of what it would be like to start his own engineering business at some stage in the future, ie a kind of general consultancy. Some of his colleagues seemed interested in the idea. The claimant mentioned that Ben Arlett of Atlas Genetics had been involved in obtaining KTP funding for the Atlas project and that he would chat with him and find out more from him.
(17) After work, on 29 September 2011 and from his own personal iPhone, the claimant e-mailed Ben Arlett and asked him to give him a call for a quick ‘off the record chat’. He included his own mobile telephone number.
(18) Ben Arlett contacted the claimant later the same evening. During the discussion the claimant indicated to Ben Arlett that he was considering possibly starting his own business at some stage in the future, perhaps in a year or so, and that it would be in the nature of a general consultancy. He asked him for feedback on the idea and also about KTP funding. Ben explained that there was scope for such business and he gave the claimant details about the KTP funding and the processes and steps involved in applying for it. The claimant then asked if Atlas Genetics was planning or doing any more projects after the project with the respondent. Ben replied that they might well do but there was nothing in motion yet. That ended the conversation.
(19) The following day the claimant had a private discussion with two colleagues and told them about his conversation with Ben Arlett, the KTP funding and that Atlas Genetics might do more projects in the future.
(20) The claimant had a direct order to prioritise the delivery of the analysers. Aiden Walsh proposed doing testing on the analyser at the Beta phase and writing up the verification reports to state that testing could not happen at the Alpha phase and was to be completed at the Beta phase. The claimant contended that it should be done at the Alpha stage and that if the modules had not changed significantly at the Beta phase then the testing could be transferred but if there were differences then the testing would need to be repeated to ensure performance had not been degraded by the changes. The claimant stated that the testing could and should be done and if it were not done that the respondent would not be complying with its own project procedures or would not satisfy the FDA requirements.
(21) Aiden Walsh continued to argue with the claimant that there was not time nor resources available to do the testing properly so they had no choice as the analysers had to be delivered to Singapore by January 2012. Aiden Walsh was to speak to Sonya Ferguson and to get back to the claimant which he did not do.
(22) On 11 October 2011 when the claimant arrived for work he was informed that he was on paid suspension by reason of comments he had made to Atlas Genetics. This occurred following a confidential report made by an unnamed employee, of the respondent, to a manager.
(23) Ben Arlett confirmed to the claimant that John Lamont, Senior Scientist with the respondent, had contacted Atlas Genetics and had been told by the CEO that there had been an enquiry about opportunities peripheral to the project from someone at Randox.
(24) The claimant believed that the cause of his suspension was not the contact with Ben Arlett but his conversation with colleagues in the canteen at the respondent’s premises which had been overheard by a recording and filming device installed by the respondent.
(25) The claimant attended by arrangement at an investigatory meeting on 13 October 2011 with John Lamont and Linda Magee from HR.
At the meeting John Lamont indicated to the claimant that the investigation was into contact that he had initiated with Atlas Genetics. He said that they had confirmed that such a conversation was in respect of setting up a consultancy and that the claimant had asked if there was any project work periphery to the project with Randox that he could conduct privately as a consultant. John Lamont stated that this looked like a clear attempt to act in competition by using knowledge of the project collaboration gained through his working with the respondent. John Lamont stated further that any such private work would be at the expense of the respondent and that this was extremely embarrassing to the respondent and detrimental to its professional relationship with Atlas Genetics. John Lamont then invited the claimant to comment. The claimant denied that his enquiries had been to do with work periphery to the project with Atlas Genetics but about different projects. He further stated that he did not believe he had done anything wrong. He further stated that he was considering setting up his own business in 12 months time and his discussion with Ben Arlett was of a general nature and was not a definite, or established as a definite, course of action planned by him.
Linda Magee indicated to the claimant that Ben Arlett had described the claimant’s contact as ‘a naive pitch for work’.
John Lamont concluded that there was no significant difference between the respondent’s understanding of the contact and the claimant’s account and that this demonstrated that there had been, in his view, a breach in the trust that is essential between employer and employee and that the matter should be referred to a disciplinary hearing on a charge of gross misconduct.
(26) The respondent’s handbook sets out a number of general rules. It states:-
“You are expected to act wholeheartedly in the interests of the Company at all times. Any conduct detrimental to its interest or its relations with any third party, or damaging to its public image, shall be considered to be a breach of the Company’s rules. …
You must not perform, arrange or carry out any work activity which could be considered to be in competition with or affect in any way the Company’s interest. …”
The company handbook describes various activities which fall under the heading of gross misconduct including:-
“Performing, arranging or carrying out any work activity which could be considered to be in competition with, or which adversely affects in any way, the Company’s interest.”
The company handbook under the title of other employment states:-
“You may not without the prior consent of the Company (which will not be unreasonably withheld) engage in any business or employment which is similar to or competitive with the business of the Company, or which could be considered to impair your ability to act at all times in the best interests of the Company, outside your hours of work for the Company.”
(27) The claimant was sent a copy of the notes of the investigatory meeting. He disputed the accuracy of a number of the comments therein and challenged them by letter. The respondent made a number of amendments on foot of the claimant’s representations but refused to make others.
(28) A disciplinary meeting was convened for 19 October 2011. The chairperson of the meeting was Dr Claire Martin. Linda McKee, HR manager, was in attendance and the claimant attended accompanied by Desmond McCullough. At the meeting the claimant agreed that he had asked Ben Arlett about future projects but disputed that these projects were peripheral to the project with Randox.
(29) Dr Martin concluded that the claimant had made contact with a customer and collaborator of the respondent using information which he gained from his work with the respondent. She viewed this as a commercial discussion and not a personal one, as the claimant had suggested, and that any such work could only be in competition with the respondent as the claimant would not be able to offer services beyond those services that lay within the scope of the respondent. She further concluded that the respondent needed to be able to trust the plaintiff with other potential external companies and that she concluded that the trust had been lost and she therefore dismissed him rather than giving him a warning. Dr Martin thought it was an important piece of evidence that Ben Arlett had regarded the claimant’s contact with him as ‘a naive pitch for work’.
(30) Just before 5.00 pm on 19 October 2011 the claimant received written notification from Linda McKee that he had been summarily dismissed for a breach of company rules by contacting a person within another company whose name and position he obtained through working with the respondent and had made ‘a naive pitch for work’ in conversation with that person. The respondent regarded this as a business call and not a personal call. He was also advised of his right of appeal.
(31) The claimant appealed the dismissal and on 27 October 2011 an appeal hearing was heard by Ivan McConnell. Cathy Kirk from Human Relations was also in attendance. The claimant alleged that the process had been biased against him and predetermined. He queried the lack of evidence from Ben Arlett or the original witness who had raised the matter with the respondent and he made representations about his own dedication to the company, to the work and his openness and honesty throughout the process.
(32) Ivan McConnell decided to uphold the decision to dismiss the claimant because he had breached company rules and procedures. He did not accept the claimant’s contentions that the process had been biased against him nor that any of the records or minutes demonstrated bias.
THE LAW
6. (1) A protected disclosure means a qualifying disclosure as defined in Article 67B of The Employment Rights (Northern Ireland) Order 1996 (Article 67A The Employment Rights (Northern Ireland) Order 1996).
(2) A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one of the following:-
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed. (Article 67B The Employment Rights (Northern Ireland) Order 1996).
(3) It is necessary that the worker making the disclosure has a reasonable belief that the disclosure tends to show one of the statutory categories of failure as set out at 6(2) above. It is not necessary for the information itself to be actually true. A disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect (Darnton v University of Surrey [2003] IRLR 133 EAT). The EAT confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations. Although it was recognised that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief the assessment of the individual’s state of mind must be based upon the facts as understood by him at the time. (Harvey on Industrial Relations and Employment Law C111 [6]).
(4) The statutory test is a subjective one. This is because the Employment Rights Order states that there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker would have held such a reasonable belief (Harvey on Industrial Relations and Employment Law C111 [7]).
(5) However the general thrust of the legislation is for a very broad range of information to be capable of amounting to a qualifying disclosure. The general requirement is that the disclosure must be of information and that a mere allegation against the employer or a simple expression of dissatisfaction by the employee will not suffice (Cavendish Munroe Professional Risks Management Limited v Geduld [2011] IRLR 38, EAT, Goode v Marks and Spencer plc UK EAT/00442/09, [2010] ALL ER (D) 63 and Smith v London Metropolitan University [2011] IRLR 884 EAT (Harvey on Industrial Relations and Employment Law C111 [11]).
(6) Under Article 67B of The Employment Rights (Northern Ireland) Order 1996 the term ‘likely’ requires more than a possibility or risk that the employer might fail to comply with a relevant legal obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation (Kraus v Penna PLc [2004] IRLR 260, EAT).
(7) In respect to each manner of disclosure sanctioned by the legislation it is necessary for the disclosure to be made in good faith. In this context the term good faith requires consideration of the motive of the worker. This is in line with the fact that the purpose of the legislation is not to allow people to advance personal grudges, but to protect those who make certain disclosures of information on the public interest. Accordingly, where a disclosure is made because of a personal grudge it will not be protected under the legislation even where the information disclosed is true and would otherwise qualify for protection (Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687) (Harvey on Industrial Relations and Employment Law C111 [15]).
(8) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure (Article 70B The Employment Rights (Northern Ireland) Order 1996).
(9) An employee who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one reason, the principle reason for the dismissal is that the employee made a protected disclosure (Article 134A The Employment Rights (Northern Ireland) Order 1996).
(10) Where the worker has suffered a detriment it is still necessary to establish that the detriment arises from an act, or a deliberate failure to act, by the employer (Harvey on Industrial Relations and Employment Law D11[93]).
(11) The act or deliberate failure to act of the employer must be done on the ground that the worker in question has made a protected disclosure. This requires an analysis of the mental processes (conscious or unconscious) which caused the employer so to act and the test is not satisfied by the simply application of a ‘but for’ test (Harrow London Borough v Knight [2003] IRLR 140). The employer must prove on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower (NHS Manchester v Fecitt [2012] IRLR 64, CA) (Harvey on Industrial Relations and Employment Law D11 [95]).
(12) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair. If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) 1996).
(13) Where an employee is dismissed and the statutory dismissal procedure is applicable but has not been complied with and the non-compliance is wholly or mainly attributable to the failure of the employer to comply with its requirements the dismissal is automatically unfair (Article 130 The Employment Rights (Northern Ireland) Order 1996).
(14) The failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure (Article 130A (2) The Employment Rights (Northern Ireland) Order 1996).
APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES
7. Issue (1)
Disclosure One
(1) The tribunal accepts that the claimant stated at the feasibility meeting that the analysers could not be ready for January 2012 and therefore that date could not be met nor could the respondent comply with its own requirements to meet that date.
(2) At the feasibility meeting there was no opposition to that contention. Stuart Jackson did not suggest that the timetable and compliance requirements could be met but rather that they should continue to work on the analysers and review the situation at Christmas 2011.
(3) The respondent entertained the hope that they might be able to improve the timeline and made certain changes in an effort to assist that objective.
(4) The Managing Director and Senior Manager, Peter Fitzgerald and Sonya Ferguson, were not pleased that the date for delivery of the analysers to Singapore would not be met.
(5) The claimant relies on a breach of a legal obligation and endangering of health in support of his public interest disclosure.
(6) The claimant was unable to identify a legal obligation with which he believed the respondent would not be able to comply or had not complied.
(7) The tribunal understands in the circumstances of this case that releasing the evolution analyser ahead of schedule means, before it was ready or had completed all the requisite testing and compliance procedures. The tribunal is not satisfied on the evidence before it that the respondent wanted to release the evolution analyser ahead of schedule.
(8) Therefore disclosure one does not qualify as a protected disclosure for the purposes of Article 67A of The Employment Rights (Northern Ireland) 1996.
Disclosure Two
(9) The tribunal is not persuaded that Claire Martin instructed the claimant not to perform verification testing as required, or instructed him to falsely fill in design documentation to say that testing could not be completed and would be done later on a later version of the prototype. In so concluding the tribunal was influenced by the denial of Claire Martin of making any such comments and importantly the failure by the claimant to put such propositions to Claire Martin for her comment.
(10) Aiden Walsh, the claimant’s line manager, did not attend the tribunal to give evidence and therefore the claimant’s assertions in relation to him were not contradicted.
(11) The tribunal is not persuaded that Aiden Walsh instructed the claimant not to perform verification testing as required nor that he instructed him to falsely fill in design documentation to say that the testing could not be completed and would be done on a later version of the prototype. In so concluding the tribunal had regard to the following matters:-
(a) The claimant alleges that these instructions were said in the presence of Claire Martin. However, although Aiden Walsh was not before the tribunal to deny such instructions, Claire Martin advised the tribunal that she did not hear any such instructions. Had they been stated at a meeting that she was present it is likely she would have heard them.
(b) Whilst Aiden Walsh was an advocate for speeding up the process and prioritising this project with a view to making the deadline this does not amount to an instruction not to perform verification testing or to falsely fill in documentation.
(c) The claimant in his evidence stated that Aiden Walsh had proposed doing the testing at the Beta stage and to write up on the results from that verification reports that the testing could not happen at the Alpha stage. A proposal does not amount to an instruction not to perform verification testing as required or falsely fill in design documentation.
(d) According to the claimant’s own statement following the discussion with Aiden Walsh and Claire Martin, at which he alleges he was given an instruction, he states that he was waiting for Aiden Walsh to get back to him after he had discussed the matter with Sonya Ferguson. Therefore it seems to the tribunal that the claimant, on his own evidence, did not perceive that he had been given an instruction by Aiden Walsh about what he should do.
(e) Failure to follow the respondent’s own internal procedures is not of itself a breach of a legal obligation and there was no evidence before the tribunal that such a failure, if it existed, would endanger the health and safety of other persons.
(f) In relation to this disclosure the claimant did not identify any legal regulation or obligation which he believed was likely to be breached or had been breached.
(g) Therefore disclosure two does not, in the tribunal’s view, amount to a protected disclosure for the purposes of Article 67A of The Employment Rights Order (Northern Ireland) 1996.
Issue (2)
(12) As the tribunal has found that disclosures one and two above do not amount to protected disclosures it is unnecessary to decide if the claimant’s claim form disclosed such disclosures or, if not, whether an amendment was necessary.
Issue (3)
(13) Again as there was not any public interest disclosure, in the tribunal’s view, the matter of detriment does not arise.
Issue (4)
(14) Again as there is no public interest disclosure made then the claimant’s dismissal cannot have been be for that reason.
Issue (5)
(15) The evidence before the tribunal did not establish any connection between the disclosures of the claimant and his dismissal. Whereas there was evidence that the Managing Director and the Senior Manager were unhappy with the inability to meet the timetable there was not any evidence before the tribunal that they did anything to promote the claimant’s dismissal as a result.
(16) The addition of Stuart Jackson to the claimant’s team can be seen as a positive move to assist by the provision of an additional person, particularly someone whose background was in software, which was a problem identified by the claimant as a weakness in the ability to achieve the timetable.
(17) The tribunal is satisfied that the reason for the claimant’s dismissal was his making contact with a member of a company with whom the respondent worked and for whom the respondent did work, thereby potentially putting the claimant into competition with his employer.
(18) The tribunal is satisfied that the dismissal relates to conduct which is one of the statutory reasons for a dismissal that is not unfair.
(19) The tribunal is satisfied that the respondent had a reasonable belief that the claimant had committed an act of misconduct. In so concluding the tribunal had regard to the following matters:-
(a) The claimant contacted Ben Arlett having obtained his contact number through his employment.
(b) The claimant was not working with Ben Arlett on the project between the respondent and Atlas Genetics.
(c) On the claimant’s own evidence he describes his contact with Ben Arlett as an ‘off the record chat’, which suggests that it is not totally proper or at least it is something about which he did want the respondent to know or the Atlas management to know. The person with whom the claimant made contact, Ben Arlett, had described the contact with the claimant as ‘a naïve pitch for work’. This was the view not only of Ben Arlett but also of the CEO of Atlas Genetics.
(d) There was no reason advanced to the tribunal as to why Ben Arlett or the CEO would so describe the contact from the claimant had they not so perceived it.
(e) The tribunal is satisfied that the respondent carried out a reasonable investigation. Whilst it could be argued that the investigation could have been broader or perhaps done with a little more formality in the recording of statements from Ben Arlett, the CEO of Atlas Genetics or the whistleblower, the essential element upon which the respondent relied was the claimant’s pitch for work. There has not been any evidence before the tribunal to suggest that that is not how Ben Arlett characterised the contact or that that description is an unreasonable description. Given the centrality of this point and the lack of disagreement on contact about work or that Ben Arlett so characterised it then the restricted investigation of lack of formality does not render the investigation unreasonable in the circumstances of this claim.
(f) Nor does the tribunal regard the disputes about accuracy of investigation notes as a significant factor in rendering the investigation unreasonable. Although the claimant challenged the accuracy of the notes at the time and succeeded in having some amendments made he did not cross-examine the respondent’s witnesses that the notes were inaccurate or not reliable.
(20) The tribunal is satisfied that the disciplinary hearing was not unfair. The criticisms of it made by the claimant are the same as those of the investigation meeting and the tribunal does not accept the validity of those criticisms and therefore they do not adversely impinge on the fairness of the disciplinary hearing. The respondent complied with the normal formalities for a fair disciplinary hearing.
(21) Similarly the respondent complied with the requirements of an appeal hearing that satisfied the requirements of fairness. Accordingly the tribunal is not persuaded that the claimant was unfairly dismissed.
Issue (7)
(22) As the dismissal has been found not to be unfair then Issue (7) does not arise for determination by the tribunal.
Issue (8)
(23) The claimant is not entitled to any payment for untaken holiday leave. The claimant received his statutory holiday entitlement under the Working Time Regulations. Any holiday entitlement under his contract of employment in excess of the statutory entitlement is not paid where the claimant is dismissed for gross misconduct. The amount of holiday leave over and above the statutory entitlement to which the claimant had a contractual claim amounted to 0.75 days. However the respondent was within its rights not to make a payment in relation to that by virtue of the claimant’s contract of employment and therefore the respondent does not owe the claimant any pay for holiday leave untaken.
Issue (9)
(24) This matter does not arise.
Issue (10)
(25) This matter does not arise as the tribunal has not found the claimant was unfairly dismissed for a public interest disclosure.
Chairman:
Date and place of hearing: 17 - 21 September 2012; and
24 – 25 September 2012, Belfast
Date decision recorded in register and issued to parties: