Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/2234_12IT.html
Cite as: [2013] NIIT 02234_12IT, [2013] NIIT 2234_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2234/12

CLAIMANT: Richard Shearer

RESPONDENT: All-Route Shipping (NI) Limited

DECISION

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

Constitution of Tribunal:

Chairman: Mr I Wimpress

Members: Mrs C Stewart

Mr P McKenna

Appearances:

The claimant was unrepresented and appeared on his own behalf.

The respondent was represented by Mr Ian Skelt, Barrister-at-Law, instructed by Tughans Solicitors.

SOURCES OF EVIDENCE

1. The tribunal heard oral evidence from the claimant, Mrs Laura Shearer, Mr Mark Grain, Mr Mark Woodside and Mr Simon Woodside and received an agreed bundle of relevant documents.

THE CLAIM AND THE RESPONSE

2. The claimant brought a claim of unfair dismissal arising from his summary dismissal for gross misconduct by the respondent. At paragraph 8.1 of his claim form the claimant stated as follows:-

“As my employer made it clear that I was in line for redundancy I feel that they upheld the charges against me in order to avoid making a redundancy payment to me. My wife who worked for the same company also sent 2 emails to personal friends. Our employer however who tracked her emails and questioned her regarding them do not level the same disciplinary charge against her but has since made her redundant which again proves to me that I was singled out for dismissal on personal grounds (age).”

The proceedings originally included a claim for age discrimination but this was not pursued.

The response filed by the respondent contended that the decision to dismiss the claimant for gross misconduct was reasonable on the basis that the forwarding of certain emails by the claimant to a friend who was also a customer of the respondent business painted it in a bad light and that the separate forwarding of a business spreadsheet/database by the claimant to his home email address was potentially damaging to the respondent business.

THE FACTS

3. The claimant commenced employment with the respondent as a Ship Agency Clerk on 1 March 2001. The respondent is a shipping and forward freight company and is part of the Woodside Haulage (Holdings) Limited Group. J P Corry is one of the respondent's main customers. The claimant was previously employed by J P Corry and according to the claimant while working there he was headhunted by the respondent.

4. The respondent business is one of a number of businesses in the Woodside Group. In 2012 due to unfavourable trading conditions the respondent determined that the business should be restructured. In September 2012 the respondent was contemplating undertaking a redundancy exercise. Redundancies were in prospect and the respondent sent out a notice to staff and arranged individual meetings with employees.

5. On 14 September 2012 a meeting was held at which it was announced that a consultation process would be commenced. On 17 September as part of that process Kelly White, the Groups HR officer, wrote to all staff and invited expressions of interest in voluntary redundancy. The letter contained information about proposed re-staffing, restructuring and potential redundancies. The claimant received this by email on 17 September 2012 at 12.58 and at 13.40 on the same day he forwarded it to Mr Brian Gourley, the Timber Procurement Director Ireland of J P Corry.

6. On 17 September 2012 at 12.58 Kelly White sent an email to all of the respondent's employees including the claimant on the subject of voluntary redundancy. In common with all of the respondent's email correspondence this email contained a notice which stated as follows:-

“This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed.....Any disclosure, copying or distribution of the information is strictly prohibited and may be unlawful."

7. On the same date at 13.40 the claimant again forwarded Ms White's email to Mr Gourley and commented as follows:-

"Hi mate

Don't let anyone know I sent you this, but it is just to let you know how bad things are getting down here.

I will keep you informed of developments as I think I am one of the three at the top of the hit list.

Keep this under your hat.

Cheers mate."

8. On 19 September 2012 the respondent commenced its redundancy consultation. Ms White met with the claimant and advised him that his role was at risk of redundancy. It was the respondent’s case that Ms White explained to the claimant that the matter was confidential and should not be discussed. The claimant was advised by Ms White that this was the first in a series of meetings in connection with the proposed redundancy and he was asked to consider possible alternatives to the redundancy situation. It was also the respondent's case that no firm decision had been taken at that time.

9. The record of the meeting on 19 September 2012 while unsatisfactory in some respects contained a clear statement that employees were advised that “all communication and what is said in meetings confidential”. Although the claimant was able to point to other comments in relation to his situation which were not recorded on the official note he did not dispute the contents of what was recorded save to the extent that he could not recall the confidentiality warning. It is also material to note that the claimant signed the record of the meeting as did Ms White. In these circumstances we are satisfied that the claimant was informed that the meeting was confidential.

10. On the same day as the meeting the claimant was in contact by email with Mr Gourley about a work related matter and in the course of this email exchange at 14.56 the claimant made the following comment:-

"Also, keep this quiet for the moment, but I was called in a few minutes ago and told that my job was being made obsolete, that my dept. Ian Dickie and me was being reduced to a one person dept. and I will be the one that they are letting go.

Speak to you in person before I stop on Friday."

Mr Gourley replied on the same date at 15.38 as follows:-

"Are you for real Slick? It certainly isn't anything to do with performance I can tell you and as discussed, I will back you all the way."

11. On 21 September 2012 the claimant forwarded a company spreadsheet to his home email address. The spreadsheet was comprised of a J P Corry Plywood Stock List. The first page gave the current Stock List and the remaining 56 tabbed pages gave similar lists going back over the last four and a half years. The respondent contended that the Stock List comprised confidential company and financial information relating to its contractual and shipping arrangements with J P Corry.

12. On 21 September 2012 the respondent became aware that the claimant had sent these emails. Mr Mark Grain, the Financial Director, was deputed to investigate the matter. He conducted an investigatory meeting with the claimant on the same day. Ms White acted as note taker. Mr Grain advised the claimant that the allegation being investigated was the disclosure of confidential information to unauthorized person/persons and that the claimant had forwarded a confidential database to his personal email address. The meeting proceeded largely on the basis of Mr Grain asking the claimant a series of pre-set questions and the claimant responding. The claimant did not dispute that he sent the emails of 17 and 19 September 2012 but expressed the view that he was entitled to tell a personal friend that he was being made redundant and that he was at liberty to disclose it however he wished. The claimant also made the point that there was no difference between word of mouth and email. In relation to the spreadsheet the claimant asserted that it was his database. At the conclusion of the questioning Mr Grain offered the claimant the opportunity to say anything else that he wished and the claimant replied in the negative. Mr Grain then adjourned the meeting for ten minutes to consider what he had heard. When Mr Grain returned he informed the claimant that too much commercially sensitive information was in circulation and that he was suspending the claimant on full pay until further notice pending further investigation.

13. Mr Grain wrote to the claimant on the same day and confirmed his suspension. Mr Grain informed the claimant that he was required to cooperate with the investigation and attend the workplace for investigatory interviews or disciplinary hearings. Mr Grain also informed the claimant that if he knew of any documents, witnesses or information that he thought might be relevant to the matters under investigation the claimant should let Mr Grain know as soon as possible.

14. The respondent's handbook states that an employee is expected to act in the interests of the company at all times and that any conduct detrimental to the company's interest or relations with third parties or damaging to its public image shall be considered a breach of the rules. The rules also confirm that an employee is not permitted to remove material or equipment of any kind without prior permission.

15. On 28 September 2012, Mr Mark Woodside wrote to the claimant and invited him to a disciplinary hearing at Woodside Head Office on 3 October 2012. The invite letter set out the allegations against the claimant which were that as an employee of the respondent he had disclosed information to a third party, an unauthorised person and that he had forwarded a confidential database to his personal email address. Mr Woodside advised that the allegations if proven would amount to gross misconduct and that this could result in his summary dismissal. The claimant was also provided with a copy of the investigation notes and the respondent’s disciplinary policy. Mr Woodside also informed the claimant that he had the right to be accompanied at the hearing by a colleague of his choice or a trade union representative.

16. The claimant sought permission to be accompanied by his wife. Mrs Shearer was also employed by the respondent and was herself under investigation at this time in relation to information that she had also disseminated by email about the pending redundancies. Mr Woodside refused to permit Mrs Shearer to accompany the claimant because he did not consider that it would be appropriate for her to do so in these circumstances. The claimant gave evidence that he therefore faced some difficulty in this regard as he was not a union member; his preferred work colleague was his wife who was refused by Mr Woodside and the invite letter imposed constraints on the claimant in either attending or contacting the workplace. Mr Woodside gave unchallenged evidence that he would have postponed the disciplinary hearing if the claimant had so requested on the basis of having difficulty securing representation.

17. The hearing proceeded on 3 October 2012 and was chaired by Mr Mark Woodside, the Managing Director of the Group. The claimant attended and presented a written statement in which he accepted that he had sent the emails and apologised. He claimed that he sent the spreadsheet to his home email address for two reasons namely customer service by enabling him to deal with queries when he was on leave the following week and avoiding the company incurring unnecessary charges. The claimant elaborated on this in some detail in his statement. The claimant also denied that he was trying to show the respondent in a bad light and sought to explain the emails to Mr Gourley on the basis that he did not consider that they contained commercially sensitive information. The claimant drew attention to his clear disciplinary record and expressed the hope that nothing more than a written warning would be imposed on this occasion. The claimant criticised the decision to refuse his chosen representative and asserted that he did not have time to arrange for a work colleague to attend. Mr Woodside sought to question the claimant about his actions but the claimant refused to answer any further questions that were put to him.

18. Mr Woodside wrote to the claimant on 5 October 2012. Mr Woodside did not accept the claimant's explanations in relation to the emails to Mr Gourley and stated that they contained sensitive information which the claimant sent to a customer of the respondent and which could have been very detrimental to the business. In relation to the database, Mr Woodside pointed out that the claimant only sent the database to his home email address after he had been informed about potential redundancies. Mr Woodside took into account that the claimant had not previously made such arrangements before going on leave. Mr Woodside refuted the suggestion that the claimant was deprived of the opportunity to bring a companion to the hearing. Mr Woodside found the allegations proven. He considered that they amounted to gross misconduct and imposed the sanction of summary dismissal. Thus the claimant was dismissed with immediate effect. The claimant was also advised of his right of appeal.

19. The claimant availed of his right of appeal by letter dated 9 October 2012. In the letter, the claimant accused the respondent of seizing on the opportunity to avoid making a redundancy payment to him, disputed that the spreadsheet contained sensitive and confidential information and made reference to him having taken paperwork home before in order either to work from home or to have information available for work outside of normal office hours. The claimant did not dispute the contention that he had never previously sent information to his home computer. The claimant also stated that he was not content to proceed with the disciplinary hearing without a companion but he was compelled to do so because of the objection to his preferred choice, Mrs Shearer, the prohibition in the respondent’s rules of representation by a person in direct authority over the claimant (Mr Carson McMullan), his reluctance to ask a work colleague in case this compromised their position and the fact that he could not avail of a trade union representative as he was not a union member.

20. The appeal hearing was scheduled for 24 October 2012 before Mr Simon Woodside. The letter of invite dated 18 October 2012 advised the claimant of his right to be accompanied by a fellow employee or a trade union representative at the appeal hearing.

21. At the outset of the hearing on 24 October the claimant questioned Mr Woodside’s method of conducting the appeal hearing and again refused to answer any questions. The claimant demanded that Mr Woodside give his decision immediately without making any further enquiries. Mr Woodside was concerned about the claimant’s attitude and decided to adjourn the hearing.

22. On 25 October 2012 Mr Woodside wrote to the claimant and advised that the hearing would reconvene on 30 October 2012. An email sent by the claimant to Ms White and copied to Mr Woodside on 26 October 2012 alludes to initial legal advice to the effect that the claimant should rest his case on the letter of appeal and not answer any questions. This was qualified by further legal advice that if further information was required the claimant should be provided with the questions in advance of the appeal hearing.

23. The claimant was again advised of his right to be accompanied in advance of the reconvened appeal hearing. The hearing took place on 30 October 2012 and the claimant again attended the appeal on his own. On this occasion the claimant was prepared to engage with Mr Woodside and he told Mr Woodside that in his opinion he had not disclosed confidential information and that his emails to Mr Gourley did not show the respondent in a bad light. The claimant also suggested that Mr Eddie McCormick had a personal vendetta against him but did not expand on this allegation. Mr Woodside did not give his decision immediately but subsequently wrote to the claimant on 31 October 2012 and informed him that the dismissal was upheld. Mr Woodside did not provide detailed reasons for his decision.

24. Mr Mark Woodside and Mr Simon Woodside were both recalled on the second day of the hearing because Mr Grain having listened to the evidence on the first day realised that only the first page of the 56 page spreadsheet was before the tribunal. They took the opportunity to elaborate on their previous evidence and both stated that in considering the matter at the disciplinary hearing and appeal they had spent some 30 to 40/45 minutes looking through the spreadsheet. The tribunal was not impressed by their knowledge and understanding of the spreadsheet which appeared very basic nor with their failure to explain in their evidence in chief that it ran to 56 pages and contained data that went back four and a half years. The claimant also appeared to have a poor understanding of the amount of data contained in the spreadsheet. It is noteworthy however that the only occasion on which he sent such a document to his home email address was at a time when he was at risk of redundancy and had recently emailed a friend at J P Corry and expressed his concerns about his future at the business.

SUBMISSIONS

25. On behalf of the respondent, Mr Skelt drew attention to a number of matters that the claimant brought up at the tribunal hearing but did not mention or elaborate on during the investigatory and disciplinary process.

1. The claimant had previously printed a hard copy of the spreadsheet and brought it home – although this was the first occasion on which he had emailed it home.

2. The claimant’s communications with work colleagues about service cover.

3. Having crew lists and personal details for customs purposes.

4. Comparison to other shipping lines such as Jenkins.

5. Being given large sums of cash to pass on to ships captains.

6. The claimant’s personal history of working with J P Corry.

7. Making points about the value of the spreadsheet such as that it had nil value or only representing 20% of J P Corry business.

8. That the claimant was only aware of the first page of the spreadsheet.

9. The complaint about a lack of investigation on the part of Mr Grain was not made during the investigatory and disciplinary process.

26. Mr Skelt also submitted that Mrs Shearer was not an appropriate comparator. Mrs Shearer’s actions were investigated and as a result she was suspended from her employment. She was made redundant nine days after the investigation. Mr Skelt submitted that it is therefore not right to say that nothing happened to her; it did but was overtaken by her redundancy. In addition, Mrs Shearer did not do the same things as her husband. She did not forward internal documents sent to staff and she did not send spreadsheets to her personal email account. Although we don’t know the end result due to her redundancy Mrs Shearer fully complied with the investigation and answered questions.

27. With regard to the gravity of the offence Mr Skelt submitted that was a testament to the danger of misusing email. The emails of 17 and 19 September were very serious on their own and Mr Skelt strongly submitted that the claimant knew that he was sending confidential information to his own account. Mr Skelt submitted that this was not credible given particularly that the claimant told his friend to keep it under his hat and not to tell anyone. Therefore he knew that it was sensitive information. The email on 19 September was sent minutes after a meeting where he was told that it was confidential. It is therefore not a case of innocent inadvertence - the claimant knew what he was doing and the respondent was entitled to come to the view that the claimant knew what he was doing. The claimant has friends who are not customers. Why send it to a customer, Mr Skelt asked rhetorically. The claimant still has provided no reason why he needed to forward the email from Kelly White. It is not credible that the claimant did not see the confidentiality rider at the foot of the email as all company emails have this. Mr Skelt submitted that this represented very serious conduct by an employee and an email to a customer which suggested that the respondent was in poor financial health was of itself damaging. However, as Mr Skelt pointed out the respondent was not seeking to make the case that it actually lost business as a result although it did lose J P Corry shortly afterwards. Rather the emphasis was on whether the actions had a tendency or potential to cause damage to the respondent. Mr Skelt also pointed out that although the claimant’s friend in J P Corry was not told about the restructuring he responded that he would back the claimant all the way. Thus the customer was pitched against the respondent business. Mr Skelt submitted that it is understandable that an employer going through the sensitive business of restructuring would want to keep it confidential. Therefore the emails of themselves were serious. This was compounded by the spreadsheet, which went back four and a half years which is exactly the sort of trading information that any business would wish to keep to itself. Mr Skelt also placed reliance on the claimant’s acceptance that employees are not entitled to send this sort of information to their personal email accounts. Mr Skelt also drew attention to the claimant’s contention at the appeal that the emails of 17 and 19 September were not expressly covered by rules and procedures and submitted in response that Mr Simon Woodside had referred to the requirement to act in the interest of the company at all times and that disclosure to third parties was clearly in breach of the rules.

28. The claimant in his submissions candidly accepted that with the benefit of hindsight he now realised that it was foolish of him to send the offending emails. The claimant took issue with suggestion that he wished to harm the respondent. The claimant also contended that Mr Grain had not carried out a reasonable investigation and that his wife’s offence was more serious in view of the identity of the recipients of her emails. The claimant also indicated that the initial legal advice obtained by him in relation to his participation in the disciplinary process was erroneous.

THE LAW

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

“130. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

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

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

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

(b) relates to the conduct of the employee,

(3) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

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

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

30. In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 (reaffirmed by the Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827) which includes (inter alia) that in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another and that the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. In this regard the tribunal is also assisted by the guidance given by the Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

31. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:

“[48]…The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –

‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:

(1) the starting point should always be the words of section 57(3) themselves;

(2) in applying the section 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 for 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, 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.’

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -

‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established 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 circumstance be a reasonable conclusion’.”

PROCEDURAL FAIRNESS

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

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

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

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

Step 2: meeting

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

(2) The meeting must not take place unless –

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

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

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

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

Step 3: appeal

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

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

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

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

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

CONCLUSIONS

Procedural Fairness

33. The investigatory and disciplinary process was conducted with scrupulous fairness by the respondent in the face of an employee who at both first instance and appeal was not disposed to answer proper and legitimate questions although he ultimately relented and did answer the questions that were put to him by Mr Simon Woodside at his appeal. The claimant did not seek to suggest that there were any breaches of the three step statutory procedure and we have not detected any. We are further satisfied that Mr Grain carried out a reasonable investigation and that the respondent did not prevent the claimant from securing an appropriate representative either at the disciplinary hearing or the appeal. We recognize and appreciate that the claimant was faced with certain difficulties in obtaining a suitable companion but the respondent’s objection to Mrs Shearer was not unreasonable. The respondent cannot plausibly or fairly be criticized for the claimant’s problems in this regard and we are satisfied that it would have allowed the claimant more time to secure a suitable companion had the claimant made a request of this nature. In particular, it is evident from the circumstances in which the appeal hearing was adjourned that Mr Simon Woodside was anxious that the claimant should have a fair opportunity to present his case.

Substantive Fairness

34. In view of the unsatisfactory evidence given by the respondent in relation to the spreadsheet we have given anxious and careful consideration to the question as to whether the respondent genuinely and reasonably believed that the claimant was guilty of the offence with which he was charged. If the charges had been confined to the spreadsheet we would have entertained reservations as to the nature and strength of the evidence on which the disciplinary decisions were based but it cannot be viewed in isolation from the other emails that formed part of the disciplinary charges and looking at the matter as a whole we are satisfied that the respondent genuinely and reasonably believed in the claimant’s guilt after carrying out a reasonable investigation.

35. It is also material that the claimant largely eschewed the opportunities afforded to him at the meetings and hearings to contest the disciplinary charges. These were the claimant’s primary and best opportunity to challenge the allegations made against him. The claimant manifestly failed to contest the charges adequately at the disciplinary hearing and the appeal hearing. The tribunal is not an appellate body and consistent with the Court of Appeal’s guidance in Rogan it should not re-hear the disciplinary proceedings. In addition, it was the respondent’s case that the spreadsheet contained in the tribunal’s bundle was merely a snapshot rather than the whole picture. The claimant candidly accepted that he did not handle the disciplinary proceedings well. In contrast the claimant conducted the tribunal hearing with skill but it is of note that he did not call his immediate supervisor, Mr Dickie, who could have given valuable evidence in support of the claimant’s contention that he was required to work at weekends, take work home, board ships and dispense large sums of money to the crews although none of this was actually disputed by the respondent’s witnesses who in any event would not necessarily have been, and on the evidence were not, in fact, au fait with the day to day activities of All Route employees as they operated at a higher managerial level in the group of companies. All the more reason one might think for the claimant to have presented this evidence during the investigatory and disciplinary process.

36. The claimant was also criticised for not putting his theory to the respondent’s witnesses that he was dismissed in order to get rid of him without making a redundancy payment. This was undermined however by the fact that the claimant’s wife was made redundant at a time when her similar conduct was being investigated. The claimant also sought to contest the email charges before us on the basis that he did not see the confidentiality notice on the respondent’s emails and did not recall being warned not to disclose information about the redundancy at the meeting. While the claimant disputed the accuracy of the record of the meeting on the basis that it was incomplete, the material that he contended was missing did not support his case in any material respect and if anything undermined it. The claimant also accepted that he would not have forwarded the emails if he had received an instruction not to do so from Ms White. With the benefit of hindsight the claimant accepted that it was foolish of him to have emailed Mr Gourley about the threat of redundancy.

37. The claimant complained that he was treated disproportionately compared to his wife in that Mrs Shearer was not subjected to disciplinary charges as a result of her disclosures but rather was made redundant. Having given careful consideration to this issue we are satisfied that her circumstances were materially different in terms of both the contents and context of the disclosure. Furthermore properly analyzed, Mrs Shearer might well have faced similar disciplinary sanctions had the investigation of her behaviour not been overtaken by her redundancy.

38. We also gave careful consideration as to whether the respondent gave proper consideration to alterative penalties. Both Mr Mark Woodside and Mr Simon Woodside gave evidence that they considered alternative sanctions short of dismissal including a final written warning. Mr Mark Woodside placed emphasis on the combination of offences and their timing and that he considered the matter as a whole. He also took into account the claimant’s service and unblemished disciplinary record and that having done so he was satisfied that the offences warranted summary dismissal. Mr Simon Woodside gave evidence that the offences were too serious for a final written warning. While dismissal may appear harsh for a first disciplinary offence we are satisfied that it was neither unreasonable nor out with the range of reasonable responses which were open to the respondent.

39. For all of these reasons the claim must therefore be dismissed.

Chairman:

Date and place of hearing: 10-12 June 2013, Belfast.

Date decision recorded in register and issued to parties: